The Case That May Require DeLay To Stay On The Ballot

I’d searched and searched for some precedent to try and predict how the 5th Circuit might rule on the DeLay case once it gets to them.

Via one of the numerous mailing lists I am on, yesterda a posting came across in relation to a specific case and how it is a likely precedent for Texas Democratic Party v. Bensiker when that case makes it to the justices in New Orleans.

So, while I can’t take credit for finding the case citation (although I did have to spend a good bit of time searching for the opinion in the case itself, I do want to discuss it.

Schaeffer v. Townsend 215 F.3d 1031 (9th Cir. 2000), is the case. And, though it comes out of the “liberal” Ninth Circuit, it appears to take a fairly “strict constructionist” view of the U.S Constitution—something the radical right-wingers on the 5th are likely to do themselves.

This case originated back in 1998, when a man was denied the opportunity to file as a candidate in the special election to replace the late Sonny Bono, who was a Congressman from California. [That's right: Cher and Tom DeLay can now be linked on Political Friendster].

Here is the gist of what happened (quoting from a Westlaw Case Summary that is part of the opinion linked above):

Michael Schaefer, a Nevada resident, sought to file as a candidate in the special Congressional election of April 7, 1998 to fill the vacancy for the 44th Congressional District of California. The seat was previously held by the late Congressman Sonny Bono who died while in office. Mischelle Townsend, the Registrar of Voters for Riverside County, refused to give Schaefer the required nomination papers because he was not registered to vote in California as required by California Elections Code S 201. Under Section 321 of that code, Schaefer could not register to vote without first establishing residency in California. He refused to become a resident until elected.

Schaefer filed a complaint in the United States District Court for the Central District of California against Townsend and Bill Jones, the Secretary of State (collectively, “California”) seeking a declaration of his rights and the issuance of an injunction compelling his admission to official candidacy. Schaefer alleged that, by requiring a candidate to reside in California before the election, the state enlarged upon the exclusive qualifications for members of the United States House of Representatives in violation of the Constitution. Following a stipulated bench trial, the district court entered judgment in favor of California.

Then, of course, Schaefer appealed to the Ninth. A three-judge panel for the Ninth basically decided two questions: (1) (which is inapplicable to the DeLay situation) was whether or not the case was “moot” because the election had ended; and (2) whether it is a requirement (or in this specific case, whether California’s requirement) that candidates for U.S. Congress reside within the state before the election is unconstitutional because it handicaps non-resident candidates.
The opinion in this case is very well-crafted. Though I’m not a lawyer, I have read a number of court opinions, and this one is very well done and seems to ‘dot all i’s and cross all t’s.’

In short, the Court held that California’s requirement that candidates for Congress have to reside in the state is unconstitutional.

The big question is, “how does that apply to Texas and how does that apply to Tom DeLay?”
I’ll do my best to answer that.

In justifying part of what it held, the court relied on one of the major cases to come before the U.S. Supreme Court in recent years that has dealt with the “qualifications clause” of the U.S. Constitution at Article I, Section 2, Clause 2. This case was U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

In that case, the issue was whether or not a constitional amendment to the Arkansas State Constitution that opposed term limits on Congressmen was constitutional. The high court, relying on its earlier decisions, ruled that, “in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution.”

But, the Ninth went farther than that, and turned to the actual intent of the framers in the drafting of the Constitution.

In a footnote and in the opinion itself, the Ninth turned to the framers. Check out footnote 5:

The Records of the Federal Convention reveal the Framers’ deliberate selection of the word “Inhabitant.” The original term was “resident.”

[...]

Roger Sherman (Con-necticut) moved to strike “resident” replacing it with “inhabitant.” He reasoned that latter term was “less liable to misconstruction.” James Madison (Virginia) seconded the motion agreeing that “both were vague, but the latter is least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business.” He wished to avoid the abuses in construing the term “resident” that had occurred in Virginia. See id.  Gouverneur Morris (Pennsylvania) and John Francis Mercer (Maryland) agreed reporting disputes that erupted in New York and Maryland over the term “resident.” No
issue regarding the possible distinction between the Framers’ use of the word “inhabitant” and the California residence requirement is raised by this case, and for present purposes we view them as interchangeable.

Then,  note what was included in the opinion itself:

History supports this construction. The Framers discussed and explicitly rejected any requirement of in-state residency before the election. The Records of the Federal Convention show that the Framers intended to preclude any further requirement of residency prior to the date of election. Debate on the matter of an in-state residency requirement was touched off when John Rutledge (South Carolina) proposed a seven-year requirement. Others thought a one-year or three-year period sufficient. George Read (Delaware), opposing any period of previous residence, “reminded [Mr. Rutledge] that we were now forming a Natil. Govt. and such a regulation would correspond little with the idea that we were one people.”  James Wilson (Pennsylvania) concurred. Mercer suggested that “such a regulation would present a greater alienship among the States thanexisted under the old federal system. It would interweave local prejudices & State distinctions in the very Constitution which is meant to cure them.” Hugh Williamson (North Carolina) opined that “[n]ew residents if elected will be most zealous to Conform to the will of their constituents, as their
conduct will be watched with a more jealous eye.”
Still others argued against the in-state residency requirement for other reasons. Madison suggested that the newly formed States in the West could not have representation if the Consti-
tution included a residency requirement. Wilson
was concerned that legislators residing at the seat of Congress would be disqualified for not residing in their state. Those favoring the restriction expressed concern that a non-resident would not have adequate familiarity with the affairs of the state represented.  The delegates voted down in turn three-year and one-year requirements of in-state residence. The Framers thus drafted the Constitution having explicitly rejected any residency requirement. It would appear then that California law imposes the very requirement that the Framers purposefully excluded from the Constitution. Concluding that nonresident candidates are a class of constitutional concern, we next inquire whether California’s residency requirement handicaps the class.

In short, I think (absent any other precedents I am not aware of), this and the Term Limits case will be the major precedents the DeLay case will be decided upon.

Though a decision from a lateral circuit appeals court isn’t a binding precedent on another circuit appeals court, in many instances appellate courts take serious notice of similar cases across the country.