GOP Files Opening Brief In DeLay Case

Attorneys for GOP Chairwoman Tina Benkiser have filed their initial brief with the Fifth Circuit Court of Appeals in the case that will determine whether or not Tom DeLay will be reqired to stay on the ballot.

Earlier this month, U.S. District Judge Sam Sparks ruled that DeLay could not get off the ballot and issued an injunction preventing the GOP from taking steps to replace him.

As reported earlier, the GOP is hinging their case on two issues:

I. Whether the district court erred when it determined that the Plaintiff Texas Democratic Party had standing.
II. Whether the district court erred in granting a permanent injunction after it determined that Texas Election Code § 145.003, as applied to federal elections, violates the Qualifications Clause of the United States Constitution rather than finding it a valid exercise of the State’s authority to regulate the political party nomination process through the time, place, and manner provisions of the Elections Clause.

I love how the attorneys for the GOP handle DeLay’s decision to move to Virginia (I’ve deleted a number of paranthetical references to exhibits from the original trial, by the way):

He ran for and won the 2006 Republican primary election for that District in March 2006. After the primary, DeLay decided to move to Virginia and began taking steps to complete that move.

Yes, United States Congressmen just up and decide to move to Virginia all the time. For no apparrent reason, I might add.
Here is how the attorneys handle the sticky situation of DeLay actually still living in Texas.

DeLay intends to be an inhabitant of Virginia indefinitely. DeLay’s only remaining tie to Texas is that he and his wife own a house in Texas for his wife’s use.

First off, that second sentence makes it sound like the DeLays are going through a divorce or something, which they certainly are not. The first sentence, however, is amusing. Note they didn’t use a word like “permanently.” “Indefinitely,” very could well mean until the day after the November election, next Christmas, or this Sunday.

Getting to the actual arguments of the brief, the Republicans are arguing (via (I) above), that the Texas Democratic Party has not proved it has standing in the case. In order to prove standing the TDP has to prove it, its candidates, etc., will suffer harm as a result of DeLay being allowed off the ballot.

The RPT is actually saying that the Democratic Party hasn’t proved this and then turns the tables and actually makes the claim that they are harmed more than the Democrats by DeLay being allowed off the ballot (note the snarky phrase “alleged good qualities” below about Nick Lampson):

Further, it is unlikely that TDP and its candidate’s campaign focus solely on DeLay rather than the alleged good qualities of its own candidate. Campaign strategies focusing on its candidate’s good qualities will not be wasted while TDP comes up with new ads to differentiate its candidate from RPT’s replacement candidate. In contrast, RPT’s newly nominated candidate will have to start from scratch and develop an entire campaign. (Docket No. 47, Trial Tr. 121.) In addition, TDP, and its candidate Nick Lampson, have had months to extoll his virtues and educate the public regarding his fitness for office, while RPT’s candidate will have to do this same task in a much shorter period of time. Thus, if anything, TDP and its candidate have an advantage if RPT names a replacement candidate.

Such an advantage is not a cognizable harm to TDP, but simply a product of our democratic process. Allowing RPT to replace an ineligible candidate will not give it an “advantage” but attempts to level the playing field, by allowing members of both parties to nominate an eligible candidate for the general election ballot.

Here is where the rubber meets the road. The Republicans argue that the advantage either side may receive by replacing DeLay is not a known harm to the TDP but rather a product of “our Democratic process.”

But, consider that the real story is different than the ones the RPT is telling in its brief.
In reality, DeLay’s departure from the ballot and the process to replace him are and were not simply a product of our Democratic process. They were, rather, the product of DeLay and his party abusing and misusing the Democratic process toward their own ends, i.e., getting DeLay off the ballot so they would not lose the District in the General Election.

The next part of the RPT’s brief addresses (II) above. Here, the Republicans are attempting to argue that Judge Sparks made an error when he enjoined the RPT from declaring DeLay ineligible and replacing him on the ballot.

This is where those Qualifications Clause arguments we’ve been discussing for the last week come in to play.

Interestingly, the RPT is asking the court to rule on their second question presented even if the court decides that the TDP didn’t have standing to bring its suit.

This is important for a couple of reasons. In many cases, if the appellate court finds that a party didn’t have standing to bring the suit on appeal in the first place, the appellate court simply declares the other arguments moot and moves on to the next case. However, the RPT, anticipating an appeal (either of their own of by the TDP), has asked the court to rule on the second question even if they rule in favor of  Benkiser and the RPT on the first.

On an interesting side note, one of the cases cited in this part of the brief is Hopwood v. Texas, the University of Texas affirmative action case decided in the late 1990s. The citation, however, is one reminding the Fifth Circuit that it has, in the past, reviewed injunctions because of the trial court’s abuse of discretion—it’s a legal issue not related to the substance of Hopwood, which was actually affirmative action. In the first part of the brief, Bush v. Gore is cited to explain what vote dillution means, in the eyes of Binkiser’s lawyers.
The RPT is claiming they should prevail over the TDP because the Elections Clause of the U.S. Constitution grants such broad powers to the states in regulating the congressional election process.

Note that the RPT is using the Term Limits case I’ve discussed before in making its argument, too (I’ve deleted all other case citations except the one for Term Limits):

Although TDP claims that “there are three, and only three constitutional requirements a person must meet to hold office as United States Representative,” there are four requirements – the final requirement being that
the “[Representative] be elected by the people of his State.”
The States, via Article I, § 4, commonly known as the “Elections Clause,” have long had the authority to create procedural regulations of federal elections so long as those
regulations do not “exclude classes of candidates from federal office.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-33 (1995). The Supreme Court has recognized that, absent Congressional action, the States’ power to regulate federal elections under the Elections Clause is quite broad.

It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.

Under this broad procedural authority

the States have evolved comprehensive . . . election codes regulating in most substantial ways, with respect to both federal and state elections, the time place and manner of holding primary and general elections . . .and the selection and qualification of candidates.

Of course, the RPT selectively omitted Schaeffer, the Ninth Circuit case I’ve mentioned several times because it deals with residency with regard to this “specific class” of candidates.

I especially enjoyed this discussion of Texas’ residency requirements as well:

However, recognizing that lives are not stagnant and that things may change between the primary date and the date that the political parties certify their candidates to the Secretary of State for the general election ballot, Texas has
provided procedures for handling those contingencies as part of the political party nominating process. First, a candidate may be declared ineligible by “the party officer responsible for certifying the candidate’s name for placement on the general
election ballot, in the case of a candidate who is a political party’s nominee,” if “facts indicating that the candidate is ineligible are conclusively established by another public record.”

Two things here are worth noting. First, the RPT is shooting themselves in the foot with this “lives are not stagnant” language. How reasonable is it to believe that someone like DeLay would just up and move out of state and decide he no longer wants to be a Congressman after several years of fighting criminal charges and ethics complaints? Second, the whole “conclusively established by another public record,” isn’t something that will help DeLay get off the ballot.

A driver’s license, voter registration card and tax statement do not “conclusively establish” that you are a resident anywhere for any purpose relative to election laws in Texas.

But wait, there’s more:

A Texas court has held that a change of voter registration alone is sufficient to provide conclusive proof of a change of residence. See Nixon v. Slagle, 885 S.W. 658, 661 (Tex. Civ. App. - Tyler 1994). Common sense dictates that some bases of ineligibility, such as whether a candidate will attain the required age for office, are reasonably knowable in advance, while others, such as where a candidate will live on election day, will have a predictive quality. Still, the Texas Legislature has rightly determined that moving is a good predictor that the candidate will no longer be eligible for office on election day…

Again, a couple of things: Nixon v. Slagle is a case at the intermediate appeallate court level in Texas (12th District COA to be exact). It’s hardly a precedent worthy of citing for the Fifth. I have read the opinion in this case before, but since it’s not online via LexisOne (the free version of LN), I can’t cite more specifics for you. But, I do know this case is cited for a lot of other precedents, too, including that voter registration applications constitute public information.

Second, though moving may be a “good predictor,” it’s not in the DeLay case, given there is no conclusive proof DeLay has moved.

Also, check out this footnote:

Because the definition of domicile and, therefore, inhabitancy, focuses not just on the public records but on the candidate’s intent, a court asked to determine a candidate’s domicile should err on the side of caution and find a candidate eligible for federal office if that candidate asserts his intention to make Texas his home. Similar weight should be give to a candidate’s assertion that he intends to make another state his home so that he will be ineligible for office.

I am actually quite surprised they didn’t cite Bartlett v. Mills here. It’s probably best they didn’t, though, because that case focuses far too much on “intent,” to the point that just saying you’ve laid your head down in a certain county at night is enough to claim residency there.

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