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.
