Friday, July 07, 2006

Attempted Election Shenanigans

Perhaps one might have missed it yesterday, but a George H.W. Bush appointed U.S. District Judge for the Western District of Texas ruled that Tom DeLay must remain on the November 2006 ballot for his now-vacated seat in the House of Representatives. You can read the opinion for yourself here. Simply put, the Judge relied on a very straight forward interpretation of the Qualifications Clause of the Constitution, Art. 1, § 2, cl. 2, which states that:
No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen (emphasis added).

The facts of the case are rather simple, DeLay ran for and won, in a much tougher race than expected, the primary election for his seat from the Texas 22nd district, thereby placing him on the ballot for November. Subsequently, after reviewing polling and other data that suggested he might loose the general election, he withdrew from the race, moved his permanent residence to Alexandria, Virginia and resigned his seat in the House. The question that remained was did these actions make him ineligible for his seat in the Texas 22nd and, therefore, allow the Texas Republican party to select a new candidate for the general election. Texas Republicans thought so; however, the Texas Democratic Party disagreed and filed a lawsuit seeking to permanently enjoin the GOP from replacing Mr. DeLay on the November ballot.

The Judge indicated that the only date that mattered for eligibility was “Election Day” or in this case November 6, 2006. Texas election law, which appears to permit the withdrawal and replacement of candidates for ineligibility even after a primary election, does not apply to federal office holders because to do so would create a qualifications requirement in addition to what the Constitution permits. See generally, US Term Limits v. Thornton. Should Mr. DeLay, remain a non-Texas resident on Election Day, he would then, and only then, be considered ineligible to receive his seat. The remedy for this situation, properly lies with the House of Representatives, who pursuant to Art. I, § 5, cl. 1 are to be “the judge of the Elections, Returns and Qualifications of its own Members.” This means that should Mr. DeLay prevail in the general election, the House could simply declare him ineligible because he was not an inhabitant of the state from which he was chosen, refuse to seat him, and thus create a vacant seat by which the state of Texas could hold a special election pursuant to its own election laws. Seems pretty consistent and straightforward to me, but the Texas GOP has said they will appeal to the Fifth Circuit, so we shall see what happens. (As an aside, it is times like these where we will sorely miss our resident 5th Circuit expert Unconfirmable, as he could potentially have handicapped what the appellate court might do with such a decision.)

While the decision itself may have been, in my opinion, unremarkable, what really burned me about it were a couple of footnotes included by the judge about testimony by both Mr. DeLay himself and the Chairwoman of the Texas GOP. According to the opinion, all of these steps were taken by Mr. DeLay after extensive consultation with Texas GOP lawyers and with the advice of the party chairmen. The court even notes that the letter which notified the Texas GOP of Mr. DeLay’s intentions was reviewed, edited and pre-cleared by the state party chair and legal counsel. This to me suggests that even in resignation there was a blatant attempt to control the future of the politics in the District. Mr. DeLay resigned, voluntarily I might add. In other words, no one forced him to leave, and I don’t believe for one second that he would have lost his race in November. Be that as it may, if his decision was to quit and resign, than fine, leave and walk away; don’t then try to manipulate a political result that you like better on your way out the door. The hubris that both Mr. DeLay and the Texas GOP have showed towards the election process and the voters in the Texas 22nd is, quite frankly, embarrassing, and I’d say that if this were Democrats pulling a stunt like this and not Republicans. (Note, before anyone mentions the 2000 New Jersey Senate Race as a example of Democrats playing fast and loose with election law, I’ll only say that I opposed that at the time, not because it was illegal (something of which I am still uncertain of not being an expert in New Jersey election law), but because it was, and remains, bad politics).

Look, just let the voters decide for heaven’s sake. If they want to continue to elect a person who has for all intensive purposes, abandoned them, fine, that’s there choice, as silly as it may be. The problem here was Mr. DeLay remaining in the race through the primary, plain and simple. Had he indicated he was not going to run for reelection prior to that we wouldn’t even be talking about this. Instead, he tested the waters and didn’t like the temperature so he got out, leaving a mass of election confusion behind and embarrassing himself and his party even further.


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