Amicus Of The 68th Lege In The DeLay Case

I’m not sure where to even begin discussing this brief. It is so thourough and well-researched in terms of legislative history, I’m simply in awe of the very .pdf file itself.

[Before going further, though, one note of administritiva: while the entire appendix to the brief is online, I've pulled out several portions of the brief and put them in smaller .pdf files (in the case of the transcript files, they are in a .doc file as I converted it from .pdf to .doc). During the course of reading this, when you see hyperlinks, in almost all cases, those hyperlinks go to individual pages (or small groups) of pages from the Appendix.]

First off, let’s take a look at the parties to the brief. They are: former State Senators Ray Farabee and Hector Uribe, and former State Representatives Gonzalo Barrientos, Steven A. Carriker, Eddie Cavazos, Paul Colbert, Lloyd Criss, Charles Gandy, Joe Hernandez, Juan “Chuy” Hinojosa, Jesse Oliver, Paul Ragsdale, and D.R. “Tom” Iher. Of course, Barrientos and Hinojosa are currently state senators.
Hernandez was the House sponsor of S.B. 122, which was passed by the 68th, and

…most of which is now codified at Texas Election Code § 145.036. That law prevents political parties from replacing candidates who “decline” the party’s nomination (now known as withdrawing from the ballot) unless the candidate withdraws because of an unforeseen, documented catastrophic illness.

In contrast to the briefs of the other parties in this case, th Amicus of the 68th presents two different questions to the Fifth Circuit, and preceeds to answer those:

1. Whether the strong legislative intent behind Section 145.036 to prevent parties from replacing less desirable nominees on contrived grounds as a matter of political strategy supports the district court’s holding.

2. Whether Texas election law allows any latitude to election officials, including political party officials, in declaring candidates “ineligible” particularly on residence grounds.

From the brief, here’s a good summary of the legislative intent of the Section in question:

In particular, in 1983, the Legislature amended the Code to eliminate a past practice of allowing parties to replace nominees who chose to “decline” the nomination for any reason. Prompted by a flurry of abuses of this device, the Legislature passed S.B. 122 which only allows replacement of party nominees after withdrawal only when they do so because of unforeseen, documented catastrophic illness. The legislative intent behind this change strongly supports the district court’s ruling in this case.

In fact, the brief indicates that the legislative history of the election code segments in question is, in fact, so strict, that its intent wouldn’t allow anyone off the ballot barring death or serious illness (citations removed):

To the contrary, the legislative history of the Texas Election Code demonstrates that - barring death or catastrophic illness - political parties are stuck with their nominees after the primary. Party chairs may not pass judgment on nominees, nor make any fact finding about the quality or “frivolousness” of nominees, nor do anything but take nominees as the voters choose them. When the “frivolous” candidate is the primary voters’ choice; party officials cannot simply declare the candidate “ineligible” to avoid the consequences of candidate withdrawal. The district court here recognized that DeLay did not simply withdraw from the ballot in order to avoid the consequences of doing so under the Election Code.

This interpretation of the law, which is based on sound legislative intent and history, is further bad news for DeLay and the Republicans because DeLay sought to be declared ineligible so that he could be replaced, instead of withdrawing so he could not be replaced.

The brief notes that the law was designed to prevent post-primary candidate swapping—which the DeLay move clearly was. It also indicates how widespread this was even into the early 1980s:

During the 1980 primary season, seven candidates from both major political parties declined their nomination. These candidates were four state representative candidates, two district judges, and one court of civil appeals candidate. In the 1982 election season, the trend accelerated with ten candidates declining the nomination, including statewide candidates. In the Republican Party, a district attorney candidate, two state representative candidates, one candidate for U.S. Representative, a State Treasurer candidate, and an Agriculture Commissioner candidate declined and were replaced. In the Democratic Party, a U.S. Representative candidate, a state representative candidate, and two district judge candidates declined and were replaced.

That’s amazing and something I had not realized.

Of special interest is that, instead of just refering to papers and memoranda, the brief actually refers to the actual debate of the committees and legislative bodies that considered this legislation. Of particular note is a February 7, 1983 hearing of the State Affairs Committee of the Texas Senate:

During the hearing there was some discussion of the need to handle situations where the candidate needs to withdraw for unforeseen, serious medical reasons.10 As the Senators discussed this issue, they drew a sharp distinction between the “stalking horse” situation they had just witnessed in the 1980 and 1982 election cycles and a situation where a candidate faced an unexpected health problem that prevented campaigning and serving in office. Amicus here, Senator Ray Farabee, then Chair of the Senate State Affairs Committee suggested a need for substantiating even the legitimate reason of withdrawal for a heart attack.

THE CHAIR: … Of course, there are groups that could make a fact-finding, and so there would be evidence to substantiate it, such as a –for example, we had an acute heart condition that came on, proved that with some medical testimony in poor (phonetic) district court, have a record so that it’s there and determined, as compared to people who are getting together and deciding that, well, I don’t feel too well, but it would be a lot better to run with this candidate at this stage, and we didn’t know where we were.

SENATOR CAPERTON: That’s exactly.

There’s more on “contrived reasoning,” which would apply directly to DeLay:

The sponsor also put some onus on the candidates to take responsibility for their commitment to the public and avoid “contrived” reasons for stepping aside in the middle of the election cycle. “[I]t makes a candidate in a primary live up to his responsibility when he or she announces as a candidate. And that is that they are not going step aside for some contrived reason.”

The brief also notes this conclusion about the adpotion of SB 122:

Thus, S.B. 122 was considered and voted on by the Senators as a method of preventing political parties from switching candidates after the primary when they can judge the the relative strengths and weaknesses of their nominees against a known nominee of the other party

The brief also notes that Tom DeLay himself was a member of the Texas House of Representatives when this bill passed on a voice vote with only two “no” votes.

Finally, the brief pegs the Republican Party and DeLay’s actions to the floor:

The Republican Party of Texas here is attempting to accomplish the very act the Texas Legislature sought to prevent - thwarting the will of voters. As the district court noted in its opinion, allowing political parties to replace nonminees who simply withdraw, decline the nomination, or otherwise make themselves unavailable would likely result in abuses in the political process and thwarting the selections of primary voters.

The brief further goes on to note that Texas law limits the authority of party chairs to declare candidates ineligible, and cites one of the cases that went before the Texas Supreme Court this primary cycle relative to Benkiser’s disqualification of a judicial candidate because of problems with their petition. It also notes that any factors of disqualification must be judicially determined. The brief notes that, “Courts faced with party executive committees engaging in fact findings as to residence have disapproved of such behavior.”

All in all, it’s an excellent and illuminating brief.

Going back to that transcript, though, I want to point out a few exchanges that aren’t in the brief. One in particular actually seems to indicate that money changed hands as a result of some of these “stalking horse” decisions:

MR. McFARLAND: Mr. Chairman, Senator, I was going to follow along the same line. Basically, what you are saying here is where, for example, a party whose nomination (inaudible), he runs a stocking horse candidate where you are going to have to shoot him or sue him to get him off or replace now, rather than just drop him out. And I think what you are trying to do here, really, is to address, as perhaps admittedly we had in the two races you suggest in your synopsis, a
proscription of a stocking horse-type candidate, where
someone at the last minute is handed 500, $600,000, whatever it is, and says, here, put your name on there, we still got to run, find somebody to run against somebody else. Right?
And while I’m sure there are manyï·“
THE CHAIR: (Inaudible) 500 or 600,000 was left to the candidate, with no one (phonetic), I meanï·“
SENATOR McFARLAND: No. This is to get his name. That comes later. That comes later. That’s where you get in to — draw later. We are not addressing that one to the bill, I certainly hope.
A SPEAKER: No, no.
SENATOR McFARLAND: All right. Goodness gracious, scared me to death. While I’m sure those that perhaps are more active in my party than I would have question with your bill, I’m really sure I don’t, because I think it’s a double-edged sword that goes in many ways. And what you are trying to do here is get that, quote, stocking horse situation out of the way.

Very interesting.

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