“Conclusive Evidence of Residency” Is Key in 5th Appeals Court Deliberations

As noted in a just released article in “The Chron”, the key consideration that the three appeals court judges appear to be concentrating on is whether Benkiser et al. can present “conclusive evidence” that Tom DeLay had moved to Virginia and will be a resident there on election day, November 7, 2006.

It would appear that the court is going to be favoring the Texas Democratic Party's position.

Why?

Well, first recall the GOP's "standing arguments": the TDP has no “standing” in the case. They are not the injured party and could not bring the suit to court in the first place. There was some discussion of this as found here but there was no apparent interest in pursuing the argument, at least in open court.

So there does not appear to be much consideration being given to that. So let's move on.

So what are they considering?

Recall the GOP argument that Benkiser was following eligibility rules in the Texas Election Code, and found that Tom DeLay was ineligible under those rules. That notwithstanding, the GOP brief attacked Sparks’ finding:

“. . .that the Constitution does not permit such speculative determinations where the election of a United States Representative is at issue, specifically because Benkiser’s prediction of future eligibility based on current inhabitancy would amount to an imposition of an unconstitutional pre-election residencyrequirement.”

The GOP lawyers argued thusly:

“… the inhabitancy requirement can be established by the person’s presence within a state coupled by his intent to remain there indefinitely.”

James Bopp, the GOP lawyer arguing the case, said

“that DeLay had given Texas Republican Chairwoman Tina Benkiser enough evidence that she could make a "reasonable prediction" that DeLay would not be a resident of Texas on election day.”

Reasonable prediction. Ho boy. Tina, I know that you are the GOP State Chairman, and I know that you once said that the Chairman of the GOP wasn’t you but Almighty God, I know all of that. But this is the first time, Tina, that it has been revealed that you are the reincarnation of Jeanne Dixon, Psychic to the Presidents.

Tina, you are no Jeanne Dixon.

[sorry, I couldn’t resist a Lloyd Benson-esque zinger]

Judges appeared to be of the same opinion though. In their statements

“Judges Pete Benavides and Edith Clement noted that a candidate like DeLay could nove back to Texas by election day and be eligible for office. They said the U.S. Constitution would prohibit a state party official from throwing a candidate off the ballot in such circumstances.”

"How can it be conclusive if you can always change your voter registration," Clement asked.

[Edith Clement is a G. W. Bush appointee]

Going on the offensive, Chad Dunn lunged for the soft underbelly of the GOP:

"This is a case where the district court found manufactured evidence, a manipulation of the system, and therefore a fraud against the voters," said Democratic attorney Chad Dunn.

Just as a personal aside, I find it ironic that Tina Benkiser used rules to declare DeLay’s ineligibility that were written specifically to prevent parties from playing a shell game with their candidates during campaigns. I also find it ironic that GOP lawyers are seeking to have Article 1 Section 2 of the US Constitution re-writtten by federal judges. They want a new interpretation of the qualification clause: a change from “when elected” to “when elected or reasonably predicted ”.

The qualification clause of the constitution, was written in such a way as to make it very easy for one to be qualified to run for congress, and equally very hard for an outside agency to determine that one is unqualified for the job.

Expect Sparks to be upheld.

Also, expect GOP to appeal to the Supreme Court where they might believe that they will get a kinder audience.