Thursday, August 03, 2006

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."


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.


abbott=hypocrite said...

Greg Abbott Betrays Texas Voters For Tom DeLay

If there were any question whether Greg Abbott's loyalty was to the Texas voters or the Republican Party of Texas, that question has been definitively answered. Abbott has sold out Texans to serve the selfish political special interests Tom DeLay and the Texas Republican Party.

As many will recall, § 145.036(b) of the Texas Election Code requires that a political party's

"executive committee may make a replacement nomination following a withdrawal only if:
(1) the candidate:
(A) withdraws because of a catastrophic illness that was diagnosed after the 62nd day before general primary election day and the illness would permanently and continuously incapacitate the candidate and prevent the candidate from performing the duties of the office sought; and
(B) files with the withdrawal request a certificate describing the illness and signed by at least two licensed physicians;
(2) no political party that held primary elections has a nominee for the office sought by the withdrawing candidate as of the time of the withdrawal; or
(3) the candidate has been elected or appointed to fill a vacancy in another elective office or has become the nominee for another office."

Consistent with the pattern of conduct throughout his political career, Tom DeLay presumed that he was above this law. DeLay waited until shortly after both parties completed their primaries and only then announced that he was withdrawing from the race with these words:

"After many weeks of personal prayerful thinking and analysis, I have come to the conclusion that it is time to close this public service chapter of my life. It's time to begin opening new chapters and pursuing new opportunities to engage in the important cultural and political battles of our day from outside the arena of the U.S. House of Representatives.... So today, I am announcing my intention to resign my seat in the House."

Despite the fact that the Texas Election Code clearly mandates that a political party cannot replace a candidate on the ballot when the candidate withdraws after the primary, the Texas GOP and DeLay nevertheless sought to manufacture an excuse to replace DeLay on the ballot. Republican federal Judge Sam Sparks rejected the Texas GOP/DeLay attempt to violate the Texas Election Code, and Judge Sparks's opinion set out his reasons clearly:

"Were the Court to adopt the Defendant's position, either political party could and would be able to change candidates after the primary election and before the general election simply by an administrative declaration of ineligibility by the party chair based on a candidate's "move" to another state. This would be a serious abuse of the election system and a fraud on the voters, which the Court will not condone."
"Political acumen, strategy, and manufactured evidence, even combined with sound policy in mind, cannot override the Constitution. The evidence presented in this case provides no basis for Benkiser’s declaration that Tom DeLay was not eligible to remain the nominee of the republican Party under state or federal law… there is no evidence that DeLay will still be living in Virginia tomorrow, let alone on November 7, 2006, the only day that matters under the Qualification Clause of the United States Constitution. DeLay himself testified that he does not know what will happen with his life in November, stating only that he plans to continue living in Virginia "indefinitely.'"
"The Constitution 'nullifies sophisticated as well as simple-minded modes' of infringing on constitutional protections."

Of course, neither the clear language of the Texas Election Code nor the well reasoned analysis of Judge Sparks's opinion were sufficient to convince DeLay that Texas laws apply to him just as they apply to everyone else in Texas. So DeLay and the Texas GOP brought this issue to the Fifth Circuit Court of Appeals.

In the Fifth Circuit, the Court received a brief on Texas election law from several members of the 68th Texas Legislature, which is the Legislature that passed the election laws which DeLay is trying to break. Among these many Legislators and former Legislators, one of those who filed this brief was Joe Hernandez, who was the House sponsor of the very law DeLay is trying to violate.

The Legislators confirmed that the Texas Election Code was drafted with the specific intention of preventing the exact abuse of the electoral process that DeLay was seeking to perpetrate:

"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 nominees 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."

Interestingly, the Legislators' brief also reminds the Fifth Circuit that DeLay was a member of the Texas House of Representatives when this bill passed on a voice vote with only two "no" votes, and DeLay was not one of the two votes against the law he is now seeking to violate.

How does this attempted violation of Texas election laws by Tom DeLay and the Republican Party of Texas relate to Greg Abbott?

Clearly, Judge Sparks has identified and documented "a serious abuse of the election system and a fraud on the voters" which would "infringe on constitutional protections" of the voters' right to elect their candidates through the primary process. In addition, members of the 68th Texas Legislature which passed these protections confirmed that "the Republican Party of Texas here is attempting to accomplish the very act the Texas Legislature sought to prevent - thwarting the will of voters."

In this context, Texans might expect that the Texas Attorney General would file a brief in this case. And, true enough, Abbott's office did file a brief in this case.

However, the brief for Abbott's Texas Attorney General's office does not support the voters of Texas and - instead - supports the Texas GOP and Tom DeLay against the voters of Texas!

Greg Abbott should be ashamed!

Now, The Fifth Circuit just issued an opinion rejecting the Texas Republican Party's effort to steal the voters' right to select a congressional candidate through the primary system. The appellate court held that:

"There is evidence that Benkiser did not act reasonably and with political neutrality when she declared DeLay ineligible. Indeed, the district court’s description of the events surrounding the letter sent by DeLay imply, at the very least, a lack of neutrality."


The Fifth Circuit went on to hold that

"we fail to see how removing DeLay from the ballot would protect the voters, inasmuch as it was the voters themselves who selected DeLay as the Republican candidate for the general election."


There can be only one answer to these questions.

Greg Abbott places his own political interests and the special interests of Tom DeLay and the Texas Republican Party above the interests of Texans.

muse said...

Fix the link to my post. GASP! There is no link to my post. :(

Hal said...


There is now.

Bloggers, don't cross this woman. She'll eat your lunch and spit out the bones.

Juanita said...

Yeah - and she'll spit the bones at you!

Hal, you're the best at filling the gaps in this story. Like you, I love that DeLay is frivolous.