Scalia refuses to aid Texas GOP on ballot
UPDATE at 5 p.m. Justice Antonin Scalia on Monday afternoon denied the request of the Texas GOP to delay a federal appeals court ruling that requires the name of former Rep. Tom DeLay to remain on the congressional ballot for this fall’s election. That ended the matter, since the Republican party’s lawyer, James Bopp, Jr., said he would not renew the request with another member of the Court.
The head of the Texas Republican Party on Monday asked Justice Antonin Scalia to block a lower court ruling so that the GOP can name a replacement for former Rep. Tom DeLay on the November congressional ballot. DeLay won the primary in March, but now claims to live in Virginia, and thus is ineligible. Under Texas law, if he is ineligible, a replacement can be named; if he is were to withdraw formally, however, the GOP line on the ballot for the 22d House District would be vacant.
Party chair Tina J. Benkiser told Scalia that the party must be able to name a replacement by Aug. 29; the Nov. 7 ballot must be finalized by Sept. 6, she said.
The application (Benkiser v. Texas Democratic Party, 06-A-139) contends that the DeLay case could provide the states with needed guidance on “the difference between adding a qualification for office and regulating the electoral process.” The Fifth Circuit Court ruled last week that the state GOP had sought to add a new and invalid qualification to run for the House by concluding, months before election day, that DeLay was ineligible because he was not a Texas resident and thus may be replaced. The Circuit Court said Delay’s eligibility or ineligibility can only be determined as of election day, Nov. 7. It refused to stay its order, so state officials remain barred from taking DeLay’s name off of the ballot.
“Establishing a nominating process,” the GOP application said, “is no more setting a qualification for office than is creating a primary” (quoting from a Supreme Court decision in 1995 in U.S. Term Limits v. Thornton).
The state Republicans asked Scalia to stay the lower court ruling pending final action by the Supreme Court on a coming petition for review.
The GOP said that the Court may want to treat the application for a stay as a petition for review, but also indicated it would be prepared to file an actual petition by Sept. 1, or earlier if the Court wishes.
The Court is in summer recess, but can act during that time on time-sensitive matters that cannot await the start of the new Term on Oct. 2. In this instance, because of the pressures of the electoral calendar, a denial of the stay request might actually settle the question as a practical matter, leaving DeLay on the ballot.
Democrats want him on the ballot partly because they sense that his problems with campaign finance and lobbying scandals make him politically vulnerable, and partly because they argue that allowing the GOP to change candidates with the campaign well under way would be unfair to their candidate — former Rep. Nick Lampson. The GOP wants a more politically saleable candidate.
The Republican request to Scalia is couched in constitutional terms, but at heart is a plea to regain control of the selection of its own candidate. “This application,” it says, ” seeks to protect Republican Party of Texas’ First Amendment right of association by protecting its ability to nominate a candidate of its choice free from the intrusion of those with adverse interests, the Texas Democratic Party.”
As a result of the Democrats’ “intrusion” into the GOP nomination process, it said, the Republican party is “forced to retain as its nominee a nominee who has announced that he will be ineligible to take office if elected, because he has moved to Virginia and plans to live there indefinitely, even though Texas election laws allow political parties to replace ineligible candidates as their nominee with someone who would be eligible to serve if elected.”
The constitutional question at issue in the case, the application says, “is whether a law that requires a candidate to reaffirm his eligibility for office, once he has taken steps that are fundamentally incompatible with that eligibility, unconstitutionally adds a qualification for federal office.”
The application also raises issues about the interpretation of Texas election law, and about the Democrats’ legal right (”standing”) to bring their challenge to the removal of DeLay’s name from the ballot. The Court seldom grants review of new cases while it is in its summer recess.
Scalia has the option of acting alone on the stay application, or of referring it to his colleagues for action. If the case were to be treated as a petition for review, it would take the votes of four Justices to grant review.
While there are significant issues with the 5th Circuit’s ruling, it’s not like DeLay (with a little help from Ronnie Earle) didn’t bring a bunch of this stuff on himself. Thus, it certainly is possible to conclude that the equities do not lie with DeLay so that a stay should issue
Comment by federalist — August 7, 2006 @ 6:36 pm
Does anyone know why Democrats couldn’t seek the same approach in Ohio as they have in Texas, given the recent news that Rep. Ney won’t seek reelection? Rep. Ney, like DeLay, has already won the Republican primary in Ohio, if I’m not mistaken. And news reports say they are already putting another Republican name on the ballot.
Comment by Michael Colasanti — August 7, 2006 @ 8:14 pm
Even though these are both House races, the rules for replacing withdrawing candidates on the ballots are set by state law, provided, of course, that the rules comply with the U.S. Constitution—the issue in the DeLay case. I just posted on the relevant Ohio-Ney replacement rules here, and I posted on the options for Texas Republicans post-DeLay here.
Comment by Rick Hasen — August 7, 2006 @ 8:40 pm
Rick:
I think you missed an option for the Republican Party of Texas. What would stop them from gathering evidence that Tom DeLay will not be a inhabitant of Texas on election day, or that DeLay is otherwise ineligible, and then filing a motion in the District Court to modify the injunction? The Fifth Circuit reject RPT’s argument that the determination of DeLay’s ineligibility was merely procedural and predictive on the grounds that Benkiser’s declaration was based on DeLay’s current residence and not on DeLay’s inhabitancy on election day. I see no reason why the RPT couldn’t produce evidence predictive of DeLay’s inhabitance on election day and then move for a modification. Granted, this won’t be easy to prove; the Fifth Circuit characterizes it as an “extraordinary burden.” A candidate choosing to assist in having himself disqualified strikes me as a rather extraordinary situation though, so perhaps it can be done.
I don’t know whether this option would succeed. Even apart from the extraordinary burden, I think the RPT might still have a problem under state law. It seems to me that a candidate who moves out of state to render himself disqualified should be treated as having withdrawn from the election. Nevertheless, I think this is an option they could consider.
Comment by QuiteAlarmed — August 8, 2006 @ 5:10 pm