Richard,
But this doesn't address why you would not favor
applying the Texas law in a flexible fashion, as was
done in New Jersey. The question is not whether or
not Texas allows candidates to withdraw freely, in
any case. It is whether or not the Texas Republican
Party has produced "conclusive" evidence that Tom
DeLay will not be eligible to serve, under the U.S.
Constitution, if he is elected. It is not clear why
you wish to apply Texas law so inflexibly, other
than perhaps some anger that the state generally has
laws that are more restrictive than you (and I)
think they ought to be.
Brad Smith
________________________________
From: ban@richardwinger.com
[mailto:richardwinger@yahoo.com]
Sent: Sun 7/9/2006 11:20 PM
To: Smith, Brad; election-law
Subject: RE: Analysis of the District Court Decision
on Tom DeLay's Candidacy
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.