Rick,
I disagree completely on your opening sentence. First, I think I do get the Court's reasoning, but I'm not sure that reasoning is so clear. Second, to the extent it is clear (and even if it is right), I don't ignore it - rather, I argue that I don't think that line of reasoning is the only one that could be adopted, and I think it relies on a different view of statutory text and a different mode of judging than that in play in the Torricelli decision.
Surely the Court could reason that where Tom DeLay made clear that he does not currently and has no future intention of meeting the constitutional requirement for holding office, the state could allow a replacement candidate to be named under the Texas statute. (What self-respecting legal realist here will deny that?) Indeed, I would find it hard to imagine any set of facts or circumstances that could more conclusively prove that a candidate will not be eligible under the qualifications clause on election day than his own statements to that effect. To say otherwise is to say that the state can never take any steps in advance to assure that a candidate who will not be eligible under the inhabitancy clause is not elected to office - because one can change one's domicile literally in a day. It is certainly a reasonable interpretation that this clause is, indeed, only retroactive: i.e., only once the election is over (or at least on election day), can we look back and see if!
, on election day, he was in fact ineligible. There's a good chance a formalist like me - usually ridiculed for my formalism - would even agree with this approach. But I am not sure that this is the only possible reading - certainly I know judges, and members of this list, who could get around such formalism without a great deal of difficulty.
I do not read the Court's opinion as adopting that tough standard in any case. The Court does make a statement more or less to that effect on page 13, at the end of part I, but what has come before that seems to accept that the state statute could be constitutional in at least some instances. (And if not, then virtually all of the Court's discussion of the issue is superfluous, though maybe he wants to get all the arguments out there for the Court of Appeals). Rather, it argues that the evidence did not "conclusively" prove that DeLay would be ineligible on election day. If "conclusive" is taken literally, it could never be proven until election day (or therefore, in reality, until after the election). But if one interprets "conclusive" as "really sure," as opposed to "conclusive" in the dictionary sense, the Court surely has the leeway in this case to decide that the burden was met - I think it arguable, but most cases that go to court are arguable. The question is, w!
hat is the best reading? One such interpretation would interpret the statute in a purposive, broad manner. Doing so would lead one, I think, to the conclusion that DeLay should be removed as a candidate and a substitute allowed, in part for the types of reasons Richard Winger hints at in another post. This is not necessarily the mode of interpretation I would choose, in this case or in New Jersey 2002.
I think in particular the Court's statement that "there is simply *no* evidence before the Court that DeLay is ineligible under the United States Constitution and certainly *no* evidence that DeLay will be ineligible on November 7, 2006" (emphasis added) is flat out wrong. Obviously there is evidence to that effect. Perhaps the Court is not persuaded by that evidence (although as I suggest above, I'm not sure what more than the statement of the individual in question could ever be submitted on the second point), but clearly there *is* *some* evidence (in fact the Court then spends about 3 pages discussing the evidence). That's why I say, in part, that I find the opinion rather shallow, although as one often prone to rhetoric myself, perhaps I am being too hard on the Court.
On comparing Torricelli, my point is not that the cases do not raise different legal issues (for surely they do). Rather, it is that one mode of analysis seems to prevail in one case (purposive, broad) and another in the other case (formalistic, narrow).
I do hope, by the way, that no one reads into these posts my position on Bensiker. I have studiously refrained from giving it. My purpose is merely to draw attention to a very different "prevailing attitude," one might say, than that that seemd to exist on this list when it was Robert Torricelli and the Democratic Party that stood to lose an important seat by a strict interpretation of the state statute. In that respect, it is simply a cautionary note - let's try to be the scholars we purport to be. I do not, in this regard, want to suggest that anyone in particular, or anyone at all, is failing. Perhaps no one is, or no one will. But these are the times when we are likely to come up short. And when we do, we lose at least some of our claim to particular public influence in considering election issues.
Brad
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Sun 7/9/2006 11:37 PM
To: Smith, Brad
Cc: election-law
Subject: Re: Analysis of the District Court Decision on Tom DeLay's Candidacy
Brad,
I think you misunderstand (or ignore the reasoning of) the district court's ruling in the DeLay case. As I understand it, the district court accepted as a fact that DeLay's current domicile is Virginia (despite some evidence to the contrary). That's not the point. The point is that the states cannot impose requirements in addition to the qualifications in the U.S. Constitution's Qualifications Claus: the person is 25 year old, 7 years or more a citizen, and has the ability to become an inhabitant of the state in which he is running on election day. DeLay can meet that standard, just as I could do so. I am a resident of California, but I could decide today to run for DeLay's seat right as a write-in candidate. Texas law cannot defeat the Qualifications Clause. The state can ban write-ins, for example (Burdick v. Takushi), but once it allows write-ins it cannot limit write in candidates to current state residents.
The Torricelli matter is different in that the NJ statute did not tie its standard for replacement of a party nominee to eligibility for office the way the Texas statute does. Texas could have said, for example, that a party may name a replacement for a candidate who withdraws at any time (or like the NJ statute, at least x number of days before the general election). That rule would not have tied the replacement standard to eligibility, creating a conflict with the Qualifications Clause.
On the statutory interpretation point in Torricelli, I have come to the position (mainly from conversations with Dan Lowenstein) that the stronger argument was against the Dem. Party's right to replace Torricelli in fewer than x days before the election given the wording of the NJ statute. But I continue to believe there are reasonable arguments to be made on both sides of the statutory interpretation question, especially using purposive statutory interpretation.
On your broader point about the list being biased, from the complaints I get about many of my positions from Democratic friends, I would hardly call this a list that toes the Democratic Party line. Look, for instance, at my position (or Dan L.'s) position on partisan gerrymandering claims, or the break between the official position of the Democratic party on campaign finance or VRA authorization and the many voices on this list. But I don't expect to convince you on this point, or much else.
Rick
Smith, Brad wrote:
I think as people on this list get all excited about Tom DeLay remaining on the Texas ballot, they might consider why it is that so many Americans don't trust academia, and have so frequently come to believe that the law and the Constitution are being purposefully applied in a partisan manner.
The Texas statute provides that a candidate may be removed if it is clear that he will not be eligible for office. According to the statute, he can be removed from the ballot if, "facts indicating that the candidate is ineligible are conclusively established by another public record." Here, the Texas GOP has produced a Virginia driver's license; proof that DeLay's taxes are being withheld as a Virginia residence, and a voter's registration in Virginia, and a public letter from DeLay that his domicile is in Virginia.
Against this, there is the fact that DeLay still owns a home in Texas (he also has a condo in Virginia - in this respect he mirrors my father, who owns a house in Texas and a condo in Columbus, and who is emphatically a domiciliary of Ohio; I would expect this is a quite common combination). Also, DeLay has not yet moved furniture or other personal effects to his Virginia condo, and his wife still occupies the Texas property - neither especially odd, given that he claims to have only recently moved his domicile.
Normally, for purposes of determining, for example, diversity jurisdiction, I think it would be fairly easy to conclude that DeLay is a domiciliary of Virginia. I understand that the Texas statute requires "conclusive" evidence, but how hard would it be for the court to determine that the evidence is "conclusive;" and that especially where the would-be candidate himself makes no claim of deprivation of a constitutional right, the qualifications clause need not be read so strictly as the Court in does in Bensiker? After all, presumably the qualifications clause exists either a) to protect the integrity of the federal government to set standards for its officeholders - not at issue here; or b) to the extent it is an individual right, to protect would-be candidates, not to force unwilling candidates to remain on the ballot. Texas now runs the risk that it could elect a congressman who might well be found to be ineligible to hold office. Indeed, if DeLay were to hold the sea
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t, and the Democrats were to win the House, they could decide on partisan lines to exclude DeLay on the grounds that he is not an inhabitant of the state of Texas. It appears to me that such an order would not be appealable to the Courts, under Powell and other precedent.
What evidence would ever suffice to "conclusively" prove the case? Isn't the purpose of the Texas law to be sure that a candidate who cannot take office is not left on the ballot? If the would-be candidate himself does not claim to be injured, where is the state interest - either state or federal - in reading the law so tightly? (The case the Court cites calling for a strict construction of any potential limitation on holding federal office does so in the context of "restrict[ing] the right to hold office.") Does not Texas have a powerful interest in assuring that it has a full congressional delegation? Should this be considered? The Court notes that none of the evidence indicates how long DeLay plans to make his domicile in Virignia. But won't this always be the case? If this is the standard, is there any hope that the Texas statute could ever have effect? The Court also points out that DeLay's letter does not say how long he plans to live in Virginia. But is thi
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s not readily ascertainable? Would it not make more sense for the Court to ask the GOP or Mr. DeLay for this info? (DeLay's letter, by the way, clearly implies that he is planning to remain in Virginia indefinitely - I think that would be the conclusion virtually all readers would draw). I understand that we have rules of discovery and evidence, but this is not hard - courts have done similar things on many ocassions, rather than get into needlessly deciding constitutional issues. Far from being "carefully reasoned" as Rick suggests, I found the Court's opinion rather shallow. Not wrong, necessarily, but definitely shallow and mechanical.
I am not saying that the Court is wrong. I am just raising the possibility of alternative reasoning. Now I would ask you to return to those heady days of October, 2002, and read the posts on this listserve regarding the decision of the New Jersey Supreme Court to allow Bob Torricelli to leave the Senate race, and allow the state Democratic Party to replace him, thus preventing a probable loss of a Senate seat. I understand that many on this list, including Rick, think that the New Jersey statute was "silent" on the key issue. I don't, and most layman I have ever discussed the case with, and provided with the statutory language at issue in that case, thought the statute pretty clearly precluded replacing Torricelli. Years ago, when Bob Bork was nominated for the Supreme Court, I heard a guy on the radio discuss why the public opposed Bork - as he put it, no matter how sound Bork's legal reasoning, he sounded a guy who was explaining why your expensive warranty covered e
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very repair except THIS one. That's a bit how I think most people view the New Jersey ruling in the Torricelli matter. Note that all of the interests raised by the plaintiffs are the same as those raised by the GOP in New Jersey in 2002: the party and candidate will have to raise and spend more money to adjust strategy in mid-election; the GOP candidate will have the advantage of a fresh start having seen how the race has played out. Not wrong, but not obvious; and met with very different response on this list than we see in the DeLay case.
In short, I hope people on this list - which has become, over the years, less and less the academic list it began as, and more and more a list for what many people - OK, I'm speaking for myself among others - would call "liberal and/or Democratic Party talking points on election law" - will just think about these two cases a bit. I can see how one can come to the conclusion that both cases are decided correctly. I do not argue here that either decision was incorrect, and I don't begrudge partisan advocates at all for their positions, even if one decided they could not be reconciled. But at least in theory, we are not partisan advocates. Do you think the average person who stumbled across these discussions would readily see the distinctions? If you think, well, we're the experts, we're able to see distinctions others cannot, consider then the response of this list to cases such as LULAC and Bush v. Gore, or consider the discussion of congressional reauthorization of the
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VRA - less the positions than the tones that dominate the discussions.
Professor Lowenstein has pointed out in the past how, despite our pretenses of scholarly impartiality, we tend to break pretty much along partisan lines in analyzing cases with partisan impact. I want to raise that concern again, as one who watches - and sometimes has fun lobbing little smoke bombs - into the room. If nothing else, the obvious dislike for DeLay that many posters show would, I think, cause them to pause and be sure that their reasoning is correct, not dictated by other considerations, and consistent with the way they have thought of similar cases in the past.
Brad Smith
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
Sent: Sun 7/9/2006 4:54 PM
To: election-law
Subject: Analysis of the District Court Decision on Tom DeLay's Candidacy
Analysis of the District Court Decision on Tom DeLay's Candidacy
I have just had a chance to read Texas Democratic Party v. Bensiker <http://www.nysd.uscourts.gov/courtweb/pdf/D05TXWC/06-02599.PDF> <http://www.nysd.uscourts.gov/courtweb/pdf/D05TXWC/06-02599.PDF> , the case from last week in which a federal district court reached the conclusion that Tom DeLay's name could not be removed from the Texas ballot and replaced by a candidate named by the Republican Party. I think the court's reasoning is sound, and that the opinion is likely to be upheld on appeal.
In a post <http://electionlawblog.org/archives/005318.html> <http://electionlawblog.org/archives/005318.html> entitled "Can Republicans Name a Replacement for Tom DeLay," written the night Tom DeLay announced his intent to resign his seat from Congress, I explained how I expected the Republicans to proceed under Texas election law. In brief, when a candidate voluntarily withdraws from a general election after securing a party's nomination, the party may not name a replacement. But when the candidate becomes ineligible for office (such as by dying), Texas law allows the party to name a new nominee. (There was some question in the DeLay case over which party officials could make that choice.)
What had not occurred to me at the time was that the Texas law in DeLay's case runs smack into the Qualifications Clause of the U.S. Constitution. Article I, section 1, clause 2 of the Constitution provides: "No person shall be a Representative who shall not have attained 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 in that state in which he shall be chosen." (Emphasis added.) The problem with the Texas elections code was that it allowed someone like DeLay to be declared ineligible even though he is 25, has always been a citizen, and can again become an "inhabitant" of Texas on Election Day. (This contrasts with the situation of a dead candidate, who cannot be an inhabitant of any state on election day.) Even though DeLay is a resident/inhabitant of Virginia now, there is nothing that physically prevents him from reestablishing his residency in Texas by election day.
The leading case on the conflict between state law and the Qualifications Clause is Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000), in which the Ninth Circuit held that "California's requirement that candidates to the House of Representatives reside within the state before election violates the Constitution by handicapping the class of nonresident candidates who otherwise satisfy the Qualifications Clause." (See also the Lowenstein and Hasen casebook at 581, briefly discussing Schaefer.) The case has a discussion of the Framers' intent in drafting the "when elected" language of the Qualifications Clause, a discussion cited by the district court in the DeLay case.
In the end, the Texas district court concluded that DeLay could still withdraw, but a replacement could not be named to appear on the ballot.
I think there is a good chance this opinion is upheld on appeal. If so, Republicans appear to have two choices:
(1) DeLay may run for office again (then potentially resign, allowing the governor to call a special election to name a replacement), a step DeLay is considering <http://electionlawblog.org/archives/006145.html> <http://electionlawblog.org/archives/006145.html> ;
or
(2) DeLay withdraws, and Republicans support a write-in candidate. My quick look at the Texas write in <http://www.capitol.state.tx.us/statutes/docs/EL/content/htm/el.009.00.000146.00.htm#146.001.00> <http://www.capitol.state.tx.us/statutes/docs/EL/content/htm/el.009.00.000146.00.htm#146.001.00> rules make this look like a possible strategy, but there may be wrinkles I don't see at first glance. Even though the district is a Republican one, it will be hard for Republicans to mount a successful write-in campaign, especially if legal proceedings drag out for a while before the party unites behind a write-in candidate and explains to voters how to cast a write-in ballot.