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.