Friday, August 04, 2006

Two Strikes for DeLay

Well the news isn’t good for Texas Republicans seeking to game the electoral system by replacing Mr. DeLay on the general election ballot. Yesterday, the conservative Fifth Circuit Court of Appeals rejected the Texas GOP’s appeal, 3-0, thereby affirming the district judge’s opinion. I posted on the district court decision previously and since very little of the 5th Circuit’s opinion differs (with the exception of a much lengthier discussion of standing to sue) substantively, I won’t rehash the legal nuances.

Needless to say the prospects for success on further appeal do not look good. The Texas GOP has two options (well technically three, as they can petition for reconsideration by the panel, but that is rarely if ever successful, especially with a published opinion): They can appeal to the full 5th Circuit (en banc); or they can appeal directly to the United States Supreme Court, which because the Court is in recess, means petitioning to the Justice assigned to the Fifth Circuit (I don’t know who that currently is, I thought it was Justice Thomas, but since Justice Alito’s confirmation that may have changed, I’m not sure) who will decide whether the case is forwarded to the full Court for consideration, or rejected. The merits of the appeal are not particularly good as the issue is straightforward, there are no Circuit splits that I’m aware of, and there has been almost total unanimity among the lower court judges who have considered the evidence and relevant technical legal issues.

I’m really not sure why the legal concepts involved are so difficult for the Texas GOP to grasp. Mr. DeLay is not constitutionally ineligible to serve in Congress until it is established that on Election Day he does not live in the district for which he was elected. Determinations of eligibility prior to Election Day are unconstitutional and as a matter of law purely speculative. As such, they create a qualification for office (namely a pre-election residency requirement) that the Constitution does not specify and that the states cannot change.

As I see things, this anguish was caused by DeLay himself who opted to run in the primary election back in March before deciding to step down so as to deny his same-party opponents (whom he apparently does not like) the opportunity to succeed him. Had DeLay refused to run in the primary none of this would have been an issue. Given the state of the law, DeLay has several options. He can run, win, and serve another term. Albeit DeLay would likely face diminished seniority and status, as well as the prospect of a restarting ethics investigation into his previous activities. Alternatively, DeLay can refuse to run, win anyway, and be declared ineligible to serve by the House when they convene for the 110th Congress in January. DeLay can also run and lose given that he hasn’t been raising money or making campaign appearances for several months (I don’t see this as likely given his incumbent status, popularity, and the fact that it is a heavily republican district. Besides, you really think the GOP would let DeLay lose, of course not; they’d pony up the necessary money in a heartbeat, as the Democrats would, if the situation were reversed). Either way, it doesn’t really matter to me, I just find it amusing that there is continued insistence that the Texas GOP can simply replace DeLay on the ballot because he is ineligible, despite the fact that 4 federal judges (including one Edith Clement, who if you’ll remember was on the short list for the SCOTUS seat that eventually went to Justice Alito) have told them they cannot. Oh well, the slogan says that everything is bigger in Texas; I guess that goes for hubris as well.


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