DeLay ballot issue heads for Court
The head of the Texas Republican Party, seeking to clear a space on the November election ballot for a new GOP candidate for the House of Representatives, announced plans Thursday to file an appeal to the Supreme Court on an expedited basis, after the Fifth Circuit Court kept former Rep. Tom DeLay on the ballot. The plan means that the state GOP will bypass any chance for en banc review in the Circuit Court, and go directly to the Supreme Court.
The case potentially could result in a clarification of states’ power to decide when a candidate for the national legislature has lost eligibility — an issue that iimplicates the constitutional definition of qualifications for a congressional candidate.
Tina Benkiser, chair of the state party, said in a statement that the GOP considers DeLay no longer eligible to be a candidate, because he has moved to Virginia and plans to remain there. He resigned from the House in April, amid spreading difficulties over campaign finance and lobbying scandals and said he would not run for reelection. He resigned after he had won the GOP primary in Texas’ 22d congressional district in March; for the time being, he remains on the ballot.
James Bopp, Jr., the attorney for the state Republicans, said the state’s Democratic Party had sued to keep DeLay on the ballot in order to force him to formally withdraw “so that their nominee runs unopposed, or to force Tom DeLay to run…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.”
If DeLay is ineligible, under state law, he can be replaced on the ballot. If he withdraws, however, it is too late to replace him, according to state law.
Democrats want DeLay on the ballot because they believe his highly publicized troubles with the law create a campaign issue and thus a greater opportunity for their candidate, former Rep. Nick Lampson. They also contend that replacing DeLay now would harm Lampson’s chances of winning by changing a campaign that is well under way and would require Democrats to raise new funds to pay for a changed election strategy.
The Fifth Circuit, in a 25-page ruling, available here, ruled that GOP chair Benkiser had acted unconstitutionally on June 7 in declaring DeLay ineligible for the ballot. The Constitution requires a member of the House to reside in a state on the day of election, the Circuit Court said, so declaring DeLay ineligible in June adds an invalid residency qualification for the office.
The Court also ruled that the GOP had no followed the standards of the state law on candidate eligibility because it has not been “conclusively established” that DeLay would not be a resident of Texas on election day. Although records showing that DeLay lives in Virginia now, the Court said that is not enough ro prove he will not be a Texas resident when the election is held in November.
In appealing to the Supreme Court, the Texas GOP expects not only to challenge the ruling on the constitutional issue, but also to contest the state Democrats’ right to bring the challenge at all (the “standing” issue). Since the Circuit Court also refused to issue a stay pending appeal, the GOP is also likely to seek a stay from the Supreme Court, or from Justice Antonin Scalia as the Circuit Justice. At present, state officials are barred by a District Court injunction from taking DeLay’s name off the ballot, and the GOP is barred from naming a replacement.
I believe that the Court is likely to reject such a challenge. Analysis here
at Election Law.
Rick Hasen
Comment by Rick Hasen — August 3, 2006 @ 5:42 pm
Would this first go as an emergency application to Scalia to lift the stay, or what other procedural options are there given the time constraints?
Comment by Adam B — August 3, 2006 @ 6:12 pm
Ok, so the constitutional harm being complained of hurts DeLay. He’s not complaining–so why can the Dems? The Dems have no right to assert DeLay’s constitutional rights, even if the unconstitutional action with respect to DeLay “harms” them. The Dems have no federal or state right not to have the GOP play these kind of games.
Comment by federalist — August 3, 2006 @ 7:59 pm
This to me, seems like a classic jus tertii issue.
Comment by federalist — August 3, 2006 @ 8:04 pm
They aren’t asserting DeLay’s constitutional rights. They are asserting thier own: the right not to be harmed by an unconstitutional action.
“the TDP has direct standing because DeLay’s replacement would cause it economic loss … [and] harm to its election prospects.” The party also has “associational standing on behalf of its candidate,” including harm to their ultimate goal of controlling the seat.
See here.
Comment by Joe — August 3, 2006 @ 10:48 pm
Joe, not that simple. The Dems have to show that the unconstitutional action harms them in a manner that harms their enforceable rights.
The injuries here do not seem legally cognizable. Saying they are doesn’t make it so. And if these were legal harms, then let’s say that Texas had a rule that people could withdraw–would they be able to assert that the economic costs of dealing with the switch to say that their rights are being harmed and thereby procure a judgment in their favor?
Comment by federalist — August 3, 2006 @ 10:59 pm
Well, the opinion says otherwise. And it cites at length supporting precedents. Footnotes 2 to 4 and 6 regarding the Texas election code speak very clearly in favor of a standing for the TDP.
Comment by micha1976 — August 4, 2006 @ 5:59 am
fed — You’re off base here. The dems are not seeking to recover economic damages, they are seeking to prevent that damage by enjoining the unlawful act that would cause it. Also, if you are truly a federalist and not merely a partisan in patriot’s clothing, you would be shocked (1) that the Republican Party removed the case from state court to federal court; and (2) that the federal court failed to treat as decisive the state appellate court decision cited in one of the footnotes where the Republican party got a Democratic party declaration of ineligibility overturned.
Comment by r.friedman — August 4, 2006 @ 8:32 am
It occurs to me that one aspect of standing was overlooked in the action and in this debate–the question of whether the TDP has associational standing to assert the rights of its members (and not simply its candidate). Even though they presumably would not cast a vote for the other party’s candidate, the members of the TDP have an interest as voters to insure that the general election ballot was created in compliance with state law. Lack of compliance should cause injury sufficient to support standing.
Comment by CajunBarrister — August 4, 2006 @ 9:34 am
“Federalist”–
You’re mixing up lack of standing and failure to state a claim. You don’t have to demonstrate a violation of legally enforceable rights to establish standing. In any event, if DeLay’s Democratic opponent has standing (I assume you agree he does), then the Democratic Party has associational standing.
Comment by Snowball007 — August 4, 2006 @ 10:31 am
Just so I have this straight:
1) Under state law, and state law only, DeLay’s withdrawal is (putting aside the state law dispute) ok, which, if true, means that the Dems have no case–i.e., the complained of injury would not be a legally cognizable injury.
2) Under federal law, the state law is unconstitutional, so the Dems get to assert DeLay’s constitutional injury because of harm to state-law created rights that would not have been cognizable had state law simply been followed.
Comment by federalist — August 4, 2006 @ 3:59 pm
What I keep wondering is: why would they skip a Petition for Rehearing en banc? I mean, the panel that heard the case was fairly liberal for the 5th Cir, Benavides and Dennis are both Clinton appointees. Not that it’s all about politics, but that sort of thing can creep in. At the SupCt, you’ve got two ways to lose (no cert, and denial on the merits) – and the first is quite likely – whereas en banc review would happen quickly, and would leave them with SupCt review if necessary.
I’d expect saner minds to prevail among the Texas Republicans, and to see an emergency en banc request filed before any cert petition. Not that I want them to win their fight, but I just can’t believe that they wouldn’t have the best attorneys in the state representing them.
I suppose it’s possible that they think their argument is so weak that they want to lose early enough to be able to strategize effectively – but frankly, if you’re arguing policy (with a strong subtext of politics), wouldn’t you rather make those arguments in a less rarified air? Just pure madness, imho.
Comment by ChuckR — August 4, 2006 @ 5:08 pm
Federalist’s last post underscores the dilemma posed by the removal of this matter to federal court–the removal compelled federal courts to adjudicate constitutional issues and state law issues, the two types of questions the federal courts are supposed to avoid unless no other basis for decision exists. The TDP originally filed this suit in state court and so it really only needed to show standing under state law (as I noted above, one overlooked theory may have been the standing of voters to challenge the TRP’s violation of state law). The procedural removal of the matter to federal court does not weaken the substantive standing of the TDP and thus, where the TDP can show that either state or federal law vests it with a right to enjoin violations of the Texas Election Code, the federal courts should not dismiss the case based on a lack of standing.
Comment by CajunBarrister — August 4, 2006 @ 6:23 pm
Fed,
Your jus tertii analyis is wrong, inter alia, because it:
(1) Assumes that the Qualifications Clause protects only DeLay like the Equal Protection Clause protects only those discriminated against, a point which is far from clear;
(2) Ignores that Texas law, according to the opinion, explicitly protected the Democrats and gave them a private right of action;
(3) Ignores that the Republicans did not argue jus tertii standing, which, unlike constitutional standing, is prudential and nonjurisdictional
Comment by anonymouse — August 5, 2006 @ 10:26 am
Fed,
Your jus tertii analyis is wrong, inter alia, because it:
(1) Assumes that the Qualifications Clause protects only DeLay like the Equal Protection Clause protects only those discriminated against, a point which is far from clear;
(2) Ignores that Texas law, according to the opinion, explicitly protected the Democrats and gave them a private right of action;
(3) Ignores that the Republicans did not argue jus tertii standing, which, unlike constitutional standing, is prudential and nonjurisdictional
Comment by anonymouse — August 5, 2006 @ 10:27 am
DeLay has the right to withdraw. No one contests that. But, under Texas election law, if a candidate withdraws after the other party has had its primary, the party cannot select another candidate. So, if DeLay withdraws, the GOP will not have a candidate in the race. If the candidate is declared ineligible, then the party can substitute a candidate. So, if DeLay is ineligible, the GOP can pick another candidate.
The Texas GOP chair declared DeLay ineligible because he moved to Virginia. The Fifth Circuit agreed with the district court that under the Constitution, DeLay is not ineligible to be the Texas 22nd Congressman just because he currently lives in Virginia. The U.S. Constitution sets the eligibility requirements for Congress, and it says a person must only be a resident of the state on election day. Since it is not yet election day, the GOP chair violated the Constitution when she declared that DeLay was ineligible for the office. She, in essence, created a durational residency requirement, which is not allowed.
Comment by David George — August 5, 2006 @ 5:03 pm
Great Fed… I agree with you. Under state law and under federal law are 2 important things we can use to see this case clearly.
Comment by george_b3nson — August 6, 2006 @ 2:45 pm