Late on Friday, October 31, U.S. District Judge Richard Arcara, a Reagan appointee, removed Alice Kryzan from the November ballot as the Working Families Party nominee (for U.S. House in the 26th district) and restored Jonathan Powers as the party’s nominee. A mid-level state court earlier in the day had put Kryzan on the ballot and taken Powers off. Then, the highest state court refused to intervene. So, then the losers in the state court case filed a federal lawsuit. The issue is whether the original Working Families Party nominee, Powers, is ineligible to serve in Congress based on his residence. Powers had won the party’s primary in September.
Powers doesn’t want to be the party’s nominee any longer, and moved out of New York state, claiming that he therefore did not meet the constitutional qualifications to be a member of Congress from New York state. If he is still eligible, he is stuck on the ballot. Article I says members of Congress must live in the state they seek to represent “when elected.” Since both Powers and Kryzan want Kryzan to have the Working Families nomination, one might wonder who filed the federal lawsuit. The answer is that the federal case was filed by supports of Chris Lee, the Republican nominee. Lee doesn’t want Kryzan to have the Working Families nomination, because Kryzan is also the Democratic nominee, and if she gets both nominations, that will help her. On the other hand, it is widely expected that Lee will win in any event.
It is somewhat astonishing that New York still doesn’t have its ballot in place for the November 4 election, in the 26th U.S. House district. It is likely the 2nd circuit will be involved on Monday, November 3. This Buffalo News article explains some of the problems for elections officials.
In the Tom DeLay case in 2006, the courts ruled that he could not be replaced on the ballot because it could not be determined whether or not he would reside in Texas on election day.
Texas law permits a political party to name a replacement for its original nominee if the nominee dies, becomes a candidate for another office, or is disqualified. It does not permit replacement in the case of voluntary withdrawal.
In the past, state legislative nominees have moved from their district, and their party has replaced them. Under the Texas Constitution, legislators must reside for one year within their district (in addition there is a longer Texas residency period). In those cases, the courts have ruled that the move outside the district disqualified the candidate.
There is of course no legal requirement that US representatives live in their district, but as you note, Article I requires State residence on the date of election. Tom DeLay moved to Virginia, and obtained a Virgina drivers license. But the courts ruled that it was impossible to determine whether he would be a Texas resident on election day, even if he indicated intent not to be.
The original case involving a representative moving into a State, was the election of Philip Key, who moved into Maryland two weeks before the election in October 1806. He lived outside Georgetown, but within the District of Columbia, but was building a residence on land he owned in Montgomery County, which he moved into just before the election, and then moved back to his house outside Georgetown for the winter.
Arguably, it was the right of the voters of Maryland to choose their representative from among their fellow citizens that was involved, more than the right of Keys to be elected that was involved, and that State laws that require early filing or State-sponsored party primaries that disqualify candidates or exclude voters prior to the date set by Congress for the choosing representatives violates that right, and violates the right of citizens to move freely among the States or even within a State without loss of their political rights.
More bad news for alternative candidates, parties, and other anti establishment organizations
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Third parties unlikely to spoil presidential race
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“There’s nothing particular that Barr or Nader is saying that resonates with these folks.”
Barr, a former Georgia congressman, is polling around 4 percentage points in his home state. That could give Obama a chance against McCain in the recently reliable Republican state, but if the Illinois senator wins there, it is almost sure to be part of a nationwide landslide and not a 2000-style squeaker.
Paul Davidson, 53, a retired police officer from Charlotte, said he tried to read up on all the candidates — including Barr. But in the end, he plans to vote for McCain.
“I think it’s great you have all these people running. That’s what America is all about,” Davidson said. “But you have to think long and hard about how you’re going to vote. I like Barr, but McCain needs every vote he can get to beat Obama.”