I support both the Torricelli decision of 2002, and
the recent DeLay decision, and I am not a partisan
Democrat.
Most states permit candidates to withdraw freely (as
long as the ballots haven't yet been printed). The
Texas legislature is free to come into special session
and revise the law to make it easier for candidates to
withdraw. Probably the Texas legislature has a means
to make a new law take effect immediately, and of
course Governor Rick Perry would sign it. As soon as
it were in effect, DeLay could withdraw. If Texas
state legislators really want to give parties
flexibility to replace candidates who don't want to
run, they have been free to do that for some time, and
they are probably even free to do it now.
The reason I supported the 2002 Torricelli decision is
that I believe it is good policy to let political
parties have flexibility to respond to unexpected
events. Texas has the most inflexible timing laws of
any state in the nation. All candidates (except
presidential candidates) must file a declaration of
candidacy in the first week in January. This is true,
even for political parties that aren't even on the
ballot yet. New parties may not start petitioning
until March, and must complete their petition by late
May, but their candidates must file a declaration of
candidacy in January! Furthermore the proposed new
party itself must also file a declaration in January
that it intends to petition, later that year.
Texas is the only state that shuts off all avenues to
the general election ballot (except for president)
unless some action is taken in January. That is
terrible public policy. If Texans are suddenly
unhappy with their inflexibility, let the legislature
take note.
--- "Smith, Brad" <BSmith@law.capital.edu> 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!
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!
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!
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!
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>
, 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>
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
=== message truncated ===
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