You'd have to have been under a rock today not to have heard about the Fifth Circuit Court of Appeals ruling that Tom DeLay must remain on the ballot for the 22nd District in Texas, to face Nick Lampson in November. What you may not have seen or heard yet is
today's decision itself, some of the immediate reaction to it, or anything on where we go next.
That's what this diary hopes to achieve.
Perhaps the first thing it's useful to recall is that DeLay himself has never been a party to this litigation. The plaintiffs were the Texas Democratic Party and Boyd L. Richie, in his capacity as Chairman of the Texas Democratic Party, while the sole defendant was Tina J. Benkiser, in her capacity as Chairwoman of the Republican Party of Texas. The issue was Benkiser's attempt to have DeLay declared administratively ineligible under the
Texas Election Code § 145.003, so that he could be replaced by "the political party's state, district, county, or precinct executive committee, as appropriate for the particular office, may nominate a replacement candidate to fill the vacancy in the nomination." (TEC § 145.036)
Rather than permitting Benkiser to go ahead and make this decision based on Texas state law, first District Court Judge Sam Sparks (in his Findings of Fact and Conclusions of Law four weeks ago today), and now all three judges on the Fifth Circuit panel found that the eligibility determination based upon residence exclusively derives from the U.S. Constitution. In terms of residence, it is solely Election Day itself that matters -- not today, not any statement of DeLay's intentions, since there's no way to know in which state he will be resident on November 7 until that day occurs. The relevant passage, known as the Qualifications Clause:
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
(U.S. CONST. art. 1, § 2, cl. 2.)
Reacting to today's unanimous ruling by Judges Fortunato Benavides, James Dennis and Edith Brown Clement (the last of whom is a Bush appointee and was touted as being on his short list to replace Justice O'Connor a year ago), the attorney for Benkiser is going around and stomping his feet, whining about how unfair it all is. In a statement excerpted in different sections by Bloomberg and Fort Bend Now, the lawyer, James Bopp Jr., said:
The Democrat Party wants to force Tom DeLay to withdraw, so that their nominee runs unopposed, or to force Tom DeLay to run, as the court has now decided, so that their nominee will be running against a candidate that is ineligible to serve. This makes a mockery of our democratic system and denies voters a meaningful choice.
-- -- --
The court held that the Texas Democrat Party could seek to control who is the nominee of the Republican Party. [The appeals panel ruling] is incompatible with a viable two-party system. Voter choice demands candidates from both parties.
Of course, the fundamental flaw in Bopp's reasoning, highlighted by his assertion that DeLay "doesn't want to run", is that there's a huge difference in the rules that apply for replacement between instances where a candidate is
declared ineligible and one where the candidate voluntarily withdraws. Texas Election Code § 145.036(b) makes this quite clear:
FILLING VACANCY IN NOMINATION.
(b) An executive committee may make a replacement nomination following a withdrawal only if:
(1) the candidate:
(A) withdraws because of a catastrophic illness that was diagnosed after the 62nd day before general primary election day and the illness would permanently and continuously incapacitate the candidate and prevent the candidate from performing the duties of the office sought; and
(B) files with the withdrawal request a certificate describing the illness and signed by at least two licensed physicians;
(2) no political party that held primary elections has a nominee for the office sought by the withdrawing candidate as of the time of the withdrawal; or
(3) the candidate has been elected or appointed to fill a vacancy in another elective office or has become the nominee for another office.
It's painfully obvious that none of these conditions apply to DeLay. Thus, we are left only with declaring him ineligible, as Benkiser sought to do back in June, with DeLay's assistance. But just like Judge Sparks, the Fifth Circuit panel would have none of it:
The plain language of the inhabitancy requirement of the Qualifications Clause shows that a candidate for the House of Representatives must only be an inhabitant of the state "when elected." U.S. CONST. art. 1, § 2, cl. 2.
Moreover, there is ample evidence suggesting that the Framers deliberately chose to use the "when elected" language. As explained by the district court, records from the constitutional convention show that the Framers debated whether to include lengthy inhabitancy requirements.
-- -- --
When Benkiser reviewed the public records sent by DeLay and concluded that his residency in Virginia made him ineligible, she unconstitutionally created a pre-election inhabitancy requirement. The Qualifications Clause only requires inhabitancy when that candidate is elected. Given this language, Benkiser could not constitutionally find that DeLay was ineligible on June 7, the date she made her decision.10 Therefore, her application of the ineligibility statute to DeLay was unconstitutional.11
______
10Benkiser's testimony acknowledges this fact:
Q: [T]here's no way you can represent to this court where [DeLay's] going to live on November 7th?
A: I can't represent anything that's going to happen on November 7th.
11That DeLay may have no interest in remaining a candidate does not alter this constitutional analysis; a candidate's subjective interest, or lack thereof, in competing for elective office does not speak to whether the candidate is qualified to do so under the Constitution.
All in all, that seems pretty straightforward, and doesn't require a specialization in either election law or constitutional scholarship to understand.
Yet according to Mr. Bopp, Benkiser now intends to press onward, bypassing an opportunity to petition for a rehearing en banc by the entire Fifth Circuit, choosing instead to make an application for an immediate appeal to the U.S. Supreme Court. Since the justice assigned to hear emergency applications arising from the Fifth Circuit is Antonin Scalia, I suspect he would recommend that the full court take the matter up on an expedited basis, but it still requires four votes to grant certiorari.
Based on my gut feelings, other comments I've seen both here and around the internet, as well as discussions with several attorneys at my office (I am not one myself), it's not entirely a given that the four votes are there. Scalia, yes. Thomas, yes. Alito, yes. Roberts, could go either way. Kennedy, doubtful. Stevens, Souter, Ginsburg or Breyer, very unlikely. And that's not based on their perceived partisan leanings, either. We'll have to see how long it takes before knowing whether the Supremes will agree to hear the case or not.
In Benkiser's appeal to the Supreme Court, it's likely that once again, the question will come up regarding whether the Texas Democratic Party (TDP) ever had proper standing to bring the initial lawsuit. The Fifth Circuit didn't buy this argument any more than Judge Sparks had originally, but expect it to run something like this, from the opening brief filed with the Fifth Circuit:
The district court erred when it determined that TDP has standing to bring its claims, because TDP's alleged harm, if any, is common to all citizens, in that it is simply an interest in the proper application of the Constitution and the law, and is inherent in the democratic process. Further, TDP's alleged injuries are speculative and the result of the independent actions of third parties not before the court. TDP has also not shown that it has associational standing based on its candidate's or members' standing, because it has not shown that either its candidate or its members would suffer a harm sufficient for them to have standing in their own right to bring suit.
As I'd noted in the past (but was fortunately wrong about at the circuit level), this could end up being the hook on which the Supreme Court could hang its hat if it chooses to hear -- and potentially ultimately side with -- Benkiser/DeLay. It's a cute, but old, stand-by which allows the higher courts to sidestep entirely the "real" issue in any litigation. In recent years, we've seen plenty of instances when appellate courts simply declare that the case was never properly before it to begin with, so either fix the defects and start over from scratch, or go away altogether. Nice dodge, and it seems to me a credible enough outcome that would cause the desired effect of terminating the injunction and thus permitting Benkiser to remove DeLay from the ballot without leaving enough time for the Democrats to react.
My understanding is that September 1 theoretically represents the "final" deadline by which counties must begin printing ballots, although with the redistricting issue as yet undecided (oral argument regarding the competing proposals is to occur tomorrow, with a decision expected fairly promptly), who knows for sure how that will play out.
Meanwhile, Nick Lampson had this to say this afternoon:
"Our country is at war, we are facing issues like unsecured borders, skyrocketing foreign debt, and we are in the middle of hurricane season. Yet, Texas's 22nd Congressional District currently has no voice in the House of Representatives. Texans have waited long enough for an outcome on this case. It is now time for us to move ahead with the election. Regardless of what Tom DeLay decides to do, I look forward to a vigorous issue-based campaign."
[Update:I came across Nacy Pelosi's
comment on the ruling a short while ago: "Today's court ruling makes clear that indicted former Congressman Tom DeLay's attempts to game the system for partisan advantage cannot stand. Texas voters now have a clear choice: to continue the culture of corruption or go in a new direction that upholds a high ethical standard."
]
It's looking more and more as though we may be able to win the seat, since DeLay effectively has no campaign apparatus remaining (though if anyone could put one together in a hurry, he's it).
Occasionally, it seems, the law is not an ass.
