Posted on 08/04/2006 8:39:35 AM PDT by Republican Red
GOP to fight DeLay ruling Republicans turn to Supreme Court after panel favors keeping him on the ballot
AUSTIN — Republicans turned to the U.S. Supreme Court on Thursday as their last hope to get former U.S. Rep. Tom DeLay off the November ballot for the congressional seat he left almost two months ago.
Earlier in the day, the likelihood had increased that DeLay would have to actively campaign for the seat when the 5th Circuit Court of Appeals ruled that Texas Republican Chairwoman Tina Benkiser did not have the authority to declare him ineligible for office because he had moved to Virginia.
DeLay could not be reached for comment.
A three-judge panel ruled in favor of the Texas Democratic Party, saying Benkiser had violated both state law and the U.S. Constitution in trying to replace DeLay on the ballot. Benkiser said she could not let that stand.
"The Republican Party of Texas intends to expeditiously appeal to the U.S. Supreme Court the 5th Circuit's decision to force Tom DeLay, an ineligible candidate for Congress, to stay on the ballot," Benkiser said.
Republican attorney James Bopp Jr. said the party will either ask the Supreme Court for a stay of the 5th Circuit's order or will ask the high court for an expedited appeal.
Bopp said a stay request would go first to Justice Antonin Scalia, who presides over the 5th Circuit. For the case to proceed, four justices would have to be willing to accept the appeal. In an expedited appeal, Bopp said either four justices could agree to take it up or it could be done on the authority of Chief Justice John Roberts.
"We would like for it to be resolved in August," Bopp said.
Bopp said the 5th Circuit's decision effectively gave the Texas Democratic Party control of who could run for the 22nd Congressional District seat.
"This is completely incomparable with a viable two-party system," Bopp said. "This makes a mockery of our democratic system and denies voters a meaningful choice."
Each party's aim Republicans want to replace DeLay on the ballot with a candidate prepared to win and serve in Congress for a district that includes parts of Fort Bend, Harris, Brazoria and Galveston counties. Democrats want DeLay to stay on the ballot because he is viewed as politically vulnerable and is a lightning rod they can use to raise funds.
DeLay fended off three challengers in the March GOP primary to win the nomination for re-election. Then in April, while under indictment and in the midst of a federal influence-peddling scandal, he announced he would resign from office and not seek re-election.
DeLay gave Benkiser documents showing he had declared his longtime condominium in Virginia as his home. He changed his voter registration, driver's license and hunting license, but Democrats noted he kept a home in Sugar Land.
Two days before DeLay left office, Benkiser declared him ineligible for the office because of the move and began the process of replacing him on the ballot.
But the Texas Democratic Party sued, saying DeLay and Benkiser were only trying to get around a state law that does not allow a party to replace a nominee who withdraws from the race if another party also has a nominee for the office.
The Democrats claimed DeLay tried to give Benkiser a sham reason to replace him by moving on paper so she could declare him ineligible. The party sued, saying the U.S. Constitution sets a candidate's eligibility as the state he is living in on Election Day.
"We didn't see this kind of manipulation in any other reported case in the country," said Democratic lawyer Cris Feldman.
U.S. District Judge Sam Sparks granted the Democrats an injunction last month, triggering the Republican appeal to the 5th Circuit. A three-judge panel heard the appeal on Monday and ruled in the Democrats' favor Thursday.
"Although the public records relied on by Benkiser may have conclusively established DeLay's present residency in Virginia, they did not conclusively establish whether he will inhabit Texas on Election Day," said the opinion written by Judge Pete Benavides and joined by Judges John Dennis and Edith Clement.
The court said Benkiser's declaration that DeLay was ineligible created an unconstitutional "pre-election inhabitancy requirement."
"Benkiser could not constitutionally find that DeLay was ineligible on June 7, the date she made the decision," the court said.
Benavides and Dennis were appointed to the court by former President Bill Clinton. Clement was appointed by President Bush and was considered by him as a possible U.S. Supreme Court nominee.
Texas Democratic Chairman Boyd Richie said the Republican Party needs to "move forward" with a "fair and moral" election.
Richie said he believes Democratic nominee Nick Lampson will win even if DeLay campaigns for office.
Bob Smither, the Libertarian nominee, said, "It seemed to me all along that what he (DeLay) did is withdraw."
'A blow to our efforts' DeLay is under indictment in Austin on campaign finance-related charges in an investigation he has said is political. Several of his former aides have pleaded guilty in a federal investigation into influence peddling by lobbyist Jack Abramoff.
Local Republicans were disheartened by the 5th Circuit ruling.
"Obviously this is a blow to our efforts to replace Congressman DeLay," Fort Bend County GOP chairman Gary Gillen said. "Ultimately the choice of where we go from here is not in our hands."
Former county chairman Eric Thode said the state party made a strategic error moving the case from state court to federal court. The party took the action after the Democrats won a temporary restraining order from a Democratic state district judge.
Thode said if the case had stayed in state court, the Republicans would have been victorious on appeal because the constitutional issues would not have been involved.
Delay is forced to run for office when in NJ Toricelli was allowed to drop out and be replaced a few weeks before the Senate race.
Delay should run hard and plan on winning.
Frankly, I want Delay in there and I want him to win.
I believe he would win unless legions of the New York and Chicago dead suddenly claim citizenship in that district.
I would laugh my ass off if DeLay not only won, but won in a landslide, because you can't tell me that the ordinary Texan in the street doesn't view the judicial jihad that was launched by Ronnie Earle as being the dirtiest kind of politics.
Hope the cops don't have to get another mug shot of Tom DeLay, the next one will have him grinning ear to ear!
Most in district 22 also want him to run. They'll elect him. The dimwit will lose. It's said that Tom will win...and resign again, then Perry will appoint a republican to represent that district.
I was blasted yesterday for suggesting Perry replace Delay upon Delay winning the race.
Seems that pesky thing called the Constitution won't allow it.
If Delay would win and then resign, a Special Election would need to be called and they all would start all over again.
I agree and I don't understand it either, but then again, what else would you expect from the Stupid Party?
Translated: RINOs Want Rid of Delay, conservative champion.
Delay will run for the Presidency.
He can win his old seat in a heart beat, while the Dems belive DeLay is "damaged goods." Dems believe their own propaganda, a big mistake in electoral politics.
How can Delay represent that district when he has moved to Virginia? Don't you have to be a state resident to be a representative?
If DeLay does not move back to Texas from Virginia by Election Day then he will be ineligible to take office and the seat will be vacant, so there would be a special election. That is, if DeLay actually wins, which I'd say is quite unlikely out there in reality.
Then how is the party wrong in their action? His change of voter registration shows his abandonment of Texas. I would love to see him back in Congress, but frankly he still needs to follow the rules, like every other American. The Supervisor of Elections should take him off the ballot if his residency is in another state.
Because the U.S. Constitution says that the only residency requirement is that DeLay live in Texas on Election Day. If DeLay wanted to, he could run the entire campaign (or not run a campaign) from Virginia, or Hawaii, or even Mongolia, so long as he moved back to Texas on November 6 to take office if he won.
Might I add, that also explains why Hillary is the Senator of New York and not Arkansas, and why Marylander Alan Keyes ran in an Illinois Senate election two years ago.
Delay said "no comment" when reached at his home in Virginia.
Perry can appoint nobody. But he can call for a special election. He might as well schedule it now.
Well establishing residency includes changing your voter registration. At least it does for the rest of us citizens. So your telling me that Tom Delay is going to change his address back on the day before the election? What would be the purpose of registering in Virginia if he planned on doing that. Its stupid. If he is playing a game, then that isn't a very good representative.
I'm not saying that he will change his address back; I'm saying that he could change his address back. And it doesn't matter what his purpose would be, because the Constitution does not include an "unless Tom DeLay doesn't plan to" caveat. As for getting of the ballot, Tom DeLay can still withdraw any time he feels like it. He didn't try to withdraw; he tried to declare himself ineligible. He can do that too, if he really wants to, but he'll have to actually do one of the things that makes him ineligible under Texas statute.
I suddenly had this image of Delay deciding to run and the rats turning around and suing to get him OFF the ballot. New day, new world.
Just seems like hes playing a big game. He can clearly see that this is dividing the party. Withdraw. People want him to either run or not too. Moving to Virginia to be a lobbyist doesn't really show his intention to be a representative of Texas.
Reminds me of the bogus prosecution that Salt Lake County attorney and Democrat Party hack, Yocum, ran against the SL County Mayor, Nancy Workman a couple of years ago. He indicted her just a few weeks prior to the election so she couldn't bow out. Than, after she was defeated, all the charges were dismissed by the judge. Typical criminal Democrat scum, Yocum. The idea of someone like this pretending to prescute criminals, whila actually being an obvious criminal is disgusting.
I thought DeLay would seek a S.C. appeal (rather than an appeal to the 5th Circuit en banc) because of the appearance of a conflict in the NJ state Supreme Court ruling and this panel's ruling.
If the panel had merely said that state's could not engage in predicting where candidate's could reside on election day, then the appeal would have been to the 5th Circuit en banc.
But, the panel said the state could remove a third-party candidate for residency, on a predictive basis, in exercing its constitutional perorgatives to administer the election. But, said the panel, a major party candidate passes the "modicum of support" test.
In contrast, the NJ state Supreme Court said that a "viability" test should apply to major party candidates, not the "modicum of support" test, on the basis that the right to vote is a fundamental right, and what is the meaning of elections if candidates chosen early in the year, who come under indictment, and so are made un-viable cannot be replaced (as long as it is reasonably possible to do this)?
Only the Supreme Court can resolve such differences in the rulings of jurisdictions.
Now, as to what the Supreme Court will say (if it accepts the appeal), it is possible, perhaps likely, to rule that states cannot deny ballot status on the basis of residency prior to election day to anybody (major or minor party) (and partially overturn the findings, but uphold the ruling of the 5th Circuit).
Alternately, it may say that the federal constitution allows states to to remove names from the ballot based on only the "modicum of support" test (which would uphold the findings and ruling of the 5th Circuit).
Or, it may say the states can exericse more discretion in administering the ballot - something akin the viability test devised by the NJ state Supreme Court - in order to preserve the right to vote (and overturn the ruling of the 5th Circuit).
Remember back to the widder Carnahan of Missouri. She was never elected. She was appointed to office after her husband was killed in a plane crash. Her husband remained on the ballot and as of the date of the election, he failed the residency requirements. The late governor Carnahan did not reside in the state thus was ineliglble for the office sought.
The votes he received should have been wasted votes. But Attorney General John Ashcroft decided not to to resist the unconstitutional democrat power grab and the wife took office.
The bad behavior continued with the withdrawl of the corrupt Toricelli in New Jersey. And again Republicans did not press the case into federal court.
The sad fact remains is that as long as Republicans continue to play nice with democrats, they will continue to to be rolled.
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