5th Circuit Court Says DeLay Stays on the Ballot

Not a “Frivolous Candidate”

In a unanimous opinion written by Pete Benavides for himself, James L. Dennis, and Edith Clement, the 5th Circuit Court of Appeals affirmed Judge Sam Sparks' July 6 ruling that Tina Benkiser’s act to declare Tom DeLay ineligible on the November ballot was unconstitutional.

You have to read the opinion. There is NOT ONE argument made by the RPT lawyers that didn’t fail. Not one. It’s rather like what the Romans did to the Carthaginians after the last Punic War – total destruction followed by sowing salt in the earth.

You can bet there will be further action by RPT lawyers. Tom REALLY doesn’t want to run. He really doesn’t. This was underlined by the lawyers for the Republican Party of Texas in one of their many arguments, this one more on the ludicrous side, that Tom DeLay was a frivolous candidate, and as such, “removing frivolous candidates from the ballot constitutes “protection of voters” under Supreme Court precedent”

The court observed that that precedent was “in the context of a candidate that will only receive minimal support in an election”, further observing that “there is no evidence that DeLay, the incumbent candidate of a dominant political party, will receive only minimal support.”

It’s just a small footnote in the overall opinion, but I just love it. The GOP’s own lawyers argue that Tom DeLay is a frivolous candidate, like “X Swami X” was in the days of my youth, and the court saying in essence, “no, the Republican nominee will probably get more than a few votes”. Muse has a great commentary on this frivolous candidate. Check this out.

The court ruled that Tina Benkiser’s action was unconstitutional in that her act “created a pre-election inhabitancy requirement” in violation of the US Constitution. Citing cases going back to 1808, and even discussions of the framers’ original intent in including the phrase “when elected” in the Qualifications Clause, the court effectively slammed the door in RPT lawyers’ faces.

Intersecting the US Constitution’s Qualifications Clause with the Texas Election Code, the court even ruled that Tina Benkiser wrongly applied the Texas statute in the TEC in ruling DeLay ineligible. Judge Benavides wrote that to declare a candidate ineligible, it must be “only when the record conclusively establishes the candidate’s ineligibility”. The fact that DeLay could move back to Texas immediately before the election negates “conclusively establishes”.

And the “standing” issues raised by RPT lawyers? Where they claimed that the Texas Democratic Party couldn’t file suit because they themselves weren’t the injured party? Their ruling was essentially this:

No . . .No . . .No . . . and NO!

The amici briefs filed by David Wallace’s lawyers and Texas Secretary of State Roger Williams were handled thusly by the court:

To Williams (who was put up to it by AG Greg Abbott) the court said this: "An amicus curiae generally cannot expand on the scope of an appeal to implicate issues that have not been presented by parties to the appeal . . . Therefore we will not consider this issue."

Ouch.

To Wallace, in whose brief he simply sought to enlighten these federal appeals judges on points and precedence of law in regard to the Qualifications Clause: A very polite silence. Nada. Nothing.

They were kind . . .

What the Future Holds

CNN political correspondent Candy Crowley reports that the party will appeal to the US Supreme Court, where they generally don’t overrule decisions that have gone through this judicial process, but adding that “surprising decisions have happened in the past.’

And so it goes. Another afternoon in the CD-22 circus.

____________________
Footnote: Harvey Kronberg's Quorum Report announced that the The justice assigned to hear emergency petitions from the 5th Circuit is Antonin Scalia. Scalia is widely known to be a strict constructionist of an "Originalist" bias. Originalism (from Wikipedia) is, "in the context of United States constitutional interpretation, . . . a family of theories which share the starting point that a Constitution (or statute) has a fixed and knowable meaning which is established at the time of passage or ratification." My thought? Like Clement, Scalia will be bound by his strict constructionism. Unless, of course, we have an activist judge here. But, you know? I think we won't, not here.