5th Circuit Court of Appeals Agrees with Texas Democrats on DeLay Ballot Challenge

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Today, a three-judge panel of the 5th Circuit Court of Appeals upheld the decision of U.S. District Judge Sam Sparks and ruled in favor of the Texas Democratic Party on the DeLay ballot challenge. As a result of the Court’s decision, Tom DeLay remains eligible to run for Congress this year as the Republican nominee from the 22nd District of Texas. The Appeals Court panel confirmed the following key findings by Judge Sparks:

  • The Texas Democratic Party had the legal standing (right) to file its complaint against the Republican Party of Texas.
  • Texas Republican Party Chair Tina Benkiser exceeded her authority and violated the U.S. Constitution by declaring DeLay ineligible. The Court ruled that Benkiser improperly established criteria for eligibility to Congress beyond the criteria provided for in the Constitution.
  • DeLay won the Republican nomination for Congress from the 22nd District and remains the CD22 nominee unless he withdraws from the ballot.
  • Tom DeLay has the right to withdraw from the ballot; however he may not be replaced.

Comments from noted law professor and election law expert Rick Hasen of Electionlawblog.com

As I predicted, the Fifth Circuit has affirmed the decision of the district court holding that the Texas Republican Party cannot replace Tom DeLay’s name on the ballot. It was a unanimous decision, and included on the panel was Judge Edith Clement [correction from my earlier post stating Edith Jones], one of the more conservative members of that court. Before the 5th Circuit issued its ruling, one of the attorneys for the TRP suggested an en banc appeal to the entire 5th Circuit or an emergency appeal to the U.S. Supreme Court should his client lose. Such efforts from the attorney, Jim Bopp, would not surprise me. He has not hesitated in the past to bring his claims for relief on an emergency basis before the Supreme Court.

But I would rate the chances of a further appeal being successful as very small. The reasoning of the 5th Circuit opinion is solid (the meat of the ruling, on page 20 of the pdf reads: “The intersection of § 145.003, which requires that proof of ineligibility be conclusive, and the Qualifications Clause, which requires inhabitancy only ‘when elected,’ presents an extraordinary burden to declaring a candidate ineligible on residency grounds prior to the election. This is because it is almost always possible for a person to change their residency: to move to the state in question before the election, thereby satisfying the Qualifications Clause.”).

The Texas election authorities need to move forward very soon on printing ballot materials. Tom DeLay created this mess when he decided to withdraw when he did—rather than withdraw before running in the primary. And finally, the Republican Party cannot get around the fact that while there is an effort to declare DeLay ineligible because he moved out of state, he in fact voluntarily withdrew from the race he was already in. For these reasons, I expect further appeals to fail.

Excerpts from the opinion

Benkiser’s Declaration Is Unconstitutional as Applied Under the Qualifications Clause

When Benkiser reviewed the public records sent by DeLay and concluded that his residency in Virginia made him ineligible, she unconstitutionally created a pre-election inhabitancy requirement. The Qualifications Clause only requires inhabitancy when that candidate is elected. Given this language, Benkiser could not constitutionally find that DeLay was ineligible on June 7, the date she made her decision.10 Therefore, her application of the ineligibility statute to DeLay was unconstitutional.

10. Benkiser’s testimony acknowledges this fact:
Q: [T]here’s no way you can represent to this court where [DeLay’s] going to live on November 7th?
A: I can’t represent anything that’s going to happen on November 7th. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Pages 12 and 13)

The RPT’s Arguments for Finding Benkiser’s Declaration Constitutional Under the Elections Clause Fail

“While states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion.” Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).

There is evidence that Benkiser did not act reasonably and with political neutrality when she declared DeLay ineligible. Indeed, the district court’s description of the events surrounding the letter sent by DeLay imply, at the very least, a lack of neutrality. Dist. Ct. Op. at *5 n.5 (explaining that Benkiser had personally revised a previous draft of DeLay’s letter). (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 15)

The RPT also contends that the declaration of ineligibility is a permissible “manner” regulation because DeLay is a frivolous candidate and removing “frivolous” candidates from the ballot constitutes “protection of voters” under Supreme Court precedent. This argument fails. Whenever the Supreme Court has discussed the states’ authority to prevent “frivolous” candidates from appearing on the ballot, it has been in the context of a candidate that will only receive minimal support in an election. See U.S. Term Limits, 514 U.S. at 834; Storer, 415 U.S. at 743. There is no evidence that DeLay, the incumbent candidate of a dominant political party, will receive only minimal support. Here, we fail to see how removing DeLay from the ballot would protect the voters, inasmuch as it was the voters themselves who selected DeLay as the Republican candidate for the general election. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Pages 16 and 17)

The RPT Failed to Meet the Standards of the Ineligibility Statute

Apart from the federal constitutional questions, this case presents a state-law statutory question. For the purposes of this section, we assume arguendo that it would be constitutional for a state actor to make pre-election, prospective judgments about residency and that Benkiser in fact made such a judgment. Even granting those assumptions, the RPT’s declaration of ineligibility would violate Texas law because DeLay’s future residency was not conclusively established by public record. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006,Page 17)

The “Conclusively Established” Standard
The intersection of § 145.003, which requires that proof of ineligibility be conclusive, and the Qualifications Clause, which requires inhabitancy only “when elected,” presents an extraordinary burden to declaring a candidate ineligible on residency grounds prior to the election. This is because it is almost always possible for a person to change their residency: to move to the state in question before the election, thereby satisfying the Qualifications Clause. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 19)

DeLay’s Future Inhabitancy Was Not “Conclusively Established”

Benkiser relied on three public records to declare DeLay ineligible:

  • DeLay’s Virginia driver’s license;
  • DeLay’s Virginia voter registration; and
  • An employment withholding form reflecting DeLay’s Virginia residence.
    Dist. Ct. Op. at *5

These documents do not conclusively establish whether DeLay will be an inhabitant of Texas on November 7, 2006. DeLay could be a current resident of Virginia, as the documents above provide, and nonetheless move back to Texas before November 7. Indeed, Benkiser admitted in her testimony that the public records could not prove DeLay’s residency on election day and that DeLay could move back to Texas before election day.(United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 19-20)

CONCLUSION

For the reasons stated above, the district court did not err when it held that the Texas ineligibility statute was unconstitutional as applied. In addition, Benkiser failed to meet the standards of the statute because the public records did not conclusively establish DeLay’s ineligibility. Finally, the injunction was an appropriate remedy. For these reasons, we AFFIRM.

Appellant’s motion for partial stay pending appeal is DENIED AS MOOT. Appellant’s second motion for partial stay pending appeal or, in the alternative, motion for full stay is also DENIED. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 25)

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