Texas Democrats Win DeLay replacement case in 5th Circuit

On August 3, the 5th circuit agreed with the U.S. District Court, that Texas Republicans may not name a new candidate for U.S. House in the 22nd district. Tom DeLay is still free to withdraw, but if he does, the Republican Party won’t have a nominee. Texas Democratic Party v Benkiser, 06-50812.

The decision is an indirect victory for ballot access. In 1995 the U.S. Supreme Court ruled that states cannot add to the qualifications listed in Article One of the Constitution, for someone to be elected to Congress. Of course, state ballot access laws in many states do make it impossible for certain candidates to run for Congress. The worst example is Georgia, which has kept all minor party members off the ballot for U.S. House ever since the current law was passed in 1943.

Since the 1995 U.S. Supreme Court term limits decision, there had (until August 3, 2006) only been two lower court ruling, applying the principle set forth in the term limits case. The 9th and 10th circuits had ruled that states cannot require candidates for congress to be registered voters. The August 3, 2006 decision Texas Democratic Party v Benkiser is the third such ruling. The 5th circuit agreed with the 9th and 10th circuits. Applying the principle, the 5th circuit said that Tom DeLay is eligible to be a member of Congress. The fact that he has moved to Virginia from Texas is irrelevant. Article One has no residency requirement for candidates for Congress, except to say that they must be residents of the state they seek to represent “on election day”. Since no one can know where DeLay will be living on November 7, 2006, is he eligible. Because he is eligible, he cannot resign and be replaced with another Republican nominee.


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Texas Democrats Win DeLay replacement case in 5th Circuit — 1 Comment

  1. Greg Abbott Betrays Texas Voters for Tom DeLay

    If there were any question whether Greg Abbott’s loyalty was to the Texas voters or the Republican Party of Texas, that question has been definitively answered. Abbott has sold out Texans to serve the selfish political special interests Tom DeLay and the Texas Republican Party.

    As many will recall, § 145.036(b) of the Texas Election Code requires that a political party’s
    “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.”

    Consistent with the pattern of conduct throughout his political career, Tom DeLay presumed that he was above this law. DeLay waited until shortly after both parties completed their primaries and only then announced that he was withdrawing from the race with these words:
    “After many weeks of personal prayerful thinking and analysis, I have come to the conclusion that it is time to close this public service chapter of my life. It’s time to begin opening new chapters and pursuing new opportunities to engage in the important cultural and political battles of our day from outside the arena of the U.S. House of Representatives…. So today, I am announcing my intention to resign my seat in the House.”

    Despite the fact that the Texas Election Code clearly mandates that a political party cannot replace a candidate on the ballot when the candidate withdraws after the primary, the Texas GOP and DeLay nevertheless sought to manufacture an excuse to replace DeLay on the ballot. Republican federal Judge Sam Sparks rejected the Texas GOP/DeLay attempt to violate the Texas Election Code, and Judge Sparks’s opinion set out his reasons clearly:

    “Were the Court to adopt the Defendant’s position, either political party could and would be able to change candidates after the primary election and before the general election simply by an administrative declaration of ineligibility by the party chair based on a candidate’s “move” to another state. This would be a serious abuse of the election system and a fraud on the voters, which the Court will not condone.”

    “Political acumen, strategy, and manufactured evidence, even combined with sound policy in mind, cannot override the Constitution. The evidence presented in this case provides no basis for Benkiser’s declaration that Tom DeLay was not eligible to remain the nominee of the republican Party under state or federal law… there is no evidence that DeLay will still be living in Virginia tomorrow, let alone on November 7, 2006, the only day that matters under the Qualification Clause of the United States Constitution. DeLay himself testified that he does not know what will happen with his life in November, stating only that he plans to continue living in Virginia “indefinitely.'”

    “The Constitution ‘nullifies sophisticated as well as simple-minded modes’ of infringing on constitutional protections.”

    Of course, neither the clear language of the Texas Election Code nor the well reasoned analysis of Judge Sparks’s opinion were sufficient to convince DeLay that Texas laws apply to him just as they apply to everyone else in Texas. So DeLay and the Texas GOP brought this issue to the Fifth Circuit Court of Appeals.

    In the Fifth Circuit, the Court received a brief on Texas election law from several members of the 68th Texas Legislature, which is the Legislature that passed the election laws which DeLay is trying to break. Among these many Legislators and former Legislators, one of those who filed this brief was Joe Hernandez, who was the House sponsor of the very law DeLay is trying to violate.

    The Legislators confirmed that the Texas Election Code was drafted with the specific intention of preventing the exact abuse of the electoral process that DeLay was seeking to perpetrate:
    THE CHAIR: Of course, there are groups that could make a fact-finding, and so there would be evidence to substantiate it, such as a –for example, we had an acute heart condition that came on, proved that with some medical testimony in poor (phonetic) district court, have a record so that it’s there and determined, as compared to people who are getting together and deciding that, well, I don’t feel too well, but it would be a lot better to run with this candidate at this stage, and we didn’t know where we were.
    SENATOR CAPERTON: That’s exactly.

    and
    MR. McFARLAND: Mr. Chairman, Senator, I was going to follow along the same line. Basically, what you are saying here is where, for example, a party whose nomination (inaudible), he runs a stocking horse candidate where you are going to have to shoot him or sue him to get him off or replace now, rather than just drop him out. And I think what you are trying to do here, really, is to address, as perhaps admittedly we had in the two races you suggest in your synopsis, a proscription of a stocking horse-type candidate, where someone at the last minute is handed 500, $600,000, whatever it is, and says, here, put your name on there, we still got to run, find somebody to run against somebody else. Right?
    And while I’m sure there are many
    THE CHAIR: (Inaudible) 500 or 600,000 was left to the candidate, with no one (phonetic), I mean
    SENATOR McFARLAND: No. This is to get his name. That comes later. That comes later. That’s where you get in to — draw later. We are not addressing that one to the bill, I certainly hope.
    A SPEAKER: No, no.
    SENATOR McFARLAND: All right. Goodness gracious, scared me to death. While I’m sure those that perhaps are more active in my party than I would have question with your bill, I’m really sure I don’t, because I think it’s a double-edged sword that goes in many ways. And what you are trying to do here is get that, quote, stocking horse situation out of the way.

    Interestingly, the Legislators’ brief also reminds the Fifth Circuit that DeLay was a member of the Texas House of Representatives when this bill passed on a voice vote with only two “no” votes, and DeLay was not one of the two votes against the law he is now seeking to violate.

    In its conclusion, the Legislators’ brief confirms that the Republican Party of Texas and DeLay are seeking to cheat Texas voters out of their right to elect a candidate through the primary process in violation of Texas law:
    “The Republican Party of Texas here is attempting to accomplish the very act the Texas Legislature sought to prevent – thwarting the will of voters. As the district court noted in its opinion, allowing political parties to replace nominees who simply withdraw, decline the nomination, or otherwise make themselves unavailable would likely result in abuses in the political process and thwarting the selections of primary voters.”

    How does this attempted violation of Texas election laws by Tom DeLay and the Republican Party of Texas relate to Greg Abbott?

    Clearly, Judge Sparks has identified and documented “a serious abuse of the election system and a fraud on the voters” which would “infringe on constitutional protections” of the voters’ right to elect their candidates through the primary process. In addition, members of the 68th Texas Legislature which passed these protections confirmed that “the Republican Party of Texas here is attempting to accomplish the very act the Texas Legislature sought to prevent – thwarting the will of voters.”

    In this context, Texans might expect that the Texas Attorney General would file a brief in this case. And, true enough, Abbott’s office did file a brief in this case.

    However, the brief for Abbott’s Texas Attorney General’s office does not support the voters of Texas and – instead – supports the Texas GOP and Tom DeLay against the voters of Texas!
    Now, the Fifth Circuit just issued an opinion rejecting the Texas Republican Party’s effort to steal the voters’ right to select a congressional candidate through the primary system. The appellate court held that:
    “There is evidence that Benkiser did not act reasonably and with political neutrality when she declared DeLay ineligible. Indeed, the district court’s description of the events surrounding the letter sent by DeLay imply, at the very least, a lack of neutrality.”

    In the context of this holding by an appeals court dominated by Republicans, we must ask WHY DID GREG ABBOTT’S ATTORNEY GENERAL’S OFFICE FILE A BRIEF IN FAVOR OF AN UNCONSTITUTIONAL ACTION WHICH WAS POLITICALLY MOTIVATED?

    The Fifth Circuit went on to hold that
    “we fail to see how removing DeLay from the ballot would protect the voters, inasmuch as it was the voters themselves who selected DeLay as the Republican candidate for the general election.”

    In light of this holding, we must ask WHY DID GREG ABBOTT’S ATTORNEY GENERAL’S OFFICE FILE A BRIEF IN FAVOR OF AN UNCONSTITUTIONAL ACTION WHICH WOULD NOT PROTECT THE VOTERS OF TEXAS?

    There can be only one answer to these questions.

    Greg Abbott places his own political interests and the special interests of Tom DeLay and the Texas Republican Party above the interests of Texans.

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