Richard writes:
 

People sympathetic to DeLay say, "why not be

flexible?"  The reason is, if it's legal for someone
to get kept off the ballot because he or she isn't a
state resident (and the candidate doesn't want to be
on the ballot), then it's legal to keep someone off
the ballot on those grounds even though the
hypothetical candidate WANTS to be on the ballot.
Being "flexible" in the DeLay matter sets up a
principle that enshrines inflexibity, a principle that
will be used to keep candidates off the ballot in the
future.

Well, the question is, is it legal to keep someone off the ballot who is not qualified for the office sought.  I think it probably is.  The question then is, what is the burden of proof.  If the Court takes a subjective approach, as the lower court did in DeLay, then one can probably never prove inelibility on the basis of residence, unless one accepts the declared statements of the candidates (perhaps if not clearly contradicted by other evidence, i.e. taking into account the witness's credibility).  This would suggest that the consequence Richard lists above is by no means necessary.  
 
- Brad Smith
 

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of ban@richardwinger.com
Sent: Fri 7/21/2006 5:04 PM
To: election-law@majordomo.lls.edu
Subject: another thought on Texas, the Jones v Bush precedent



In Jones v Bush, a U.S. District Court in Texas in
2000 refused to order Texas' presidential electors not
to vote both for Bush for president and Cheney for
v-p.  The people who filed the case claimed that
Cheney was a Texan.  The Court ruled that the people
who filed the case lacked standing.  But the court
when on to express the viewpoint that, in any event,
Cheney had sold his only Texas residence months
earlier and was no longer a Texan, but a Wyoming
resident.

The Texas Attorney General's brief expresses the
viewpoint that if the court in Jones v Bush felt it
reasonable to guess where Cheney would be living on
December 18 (electoral college meeting day in 2000),
then the federal courts should likewise feel it
reasonable for Texas elections officials to guess
where Tom DeLay will be living on November 7, 2006.
And that it is reasonable for these election officials
to guess that he will be a Virginian on that day

Even if the Jones v Bush plaintiffs did have standing,
and even if all the evidence had showed clearly that
Cheney was a Texan and had no other state in which he
could claim residence, in my opinion the U.S. District
Court still could not have issued an injunction to
tell the Texas electors not to vote for Bush and
Cheney.  Article II provides that if electors vote for
someone who isn't qualified, the remedy is for
Congress to adjudicate the matter in January when
Congress counts the electoral votes.  Courts have no
business in the matter.

Therefore, it seems to me, everything the judge said
in the Jones v Bush case about whether it was
reasonable to assume Cheney would be a Wyoming
resident instead of a Texas on December 18 was
irrelevant to settling that case.  It was dicta.

People sympathetic to DeLay say, "why not be
flexible?"  The reason is, if it's legal for someone
to get kept off the ballot because he or she isn't a
state resident (and the candidate doesn't want to be
on the ballot), then it's legal to keep someone off
the ballot on those grounds even though the
hypothetical candidate WANTS to be on the ballot.
Being "flexible" in the DeLay matter sets up a
principle that enshrines inflexibity, a principle that
will be used to keep candidates off the ballot in the
future.

An interesting Texas precedent was set in 1992 in the
Texas Supreme Court in LaRouche v Hannah.  LaRouche
was in federal prison at the time.  He was still
running for president.  The Texas Democratic Party
refused to put him on the Democratic presidential
primary ballot that year on the grounds that he was a
current felon, but the Texas Supreme Court ordered him
onto the ballot.  LaRouche v Hannah, 822 SW 2d 632.

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