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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).