http://electionlawblog.org/archives/006401.html
Inital Thoughts on Fifth Circuit Ruling Unanimously
Upholding District Court Decision Preventing Texas Republican Party
from Naming a Replacement for Tom DeLay on the Ballot
As I predicted,
the Fifth Circuit has affirmed
the decision of the district court holding that the Texas Republican
Party cannot replace Tom DeLay's name on the ballot. It was a unanimous
decision, and included on the panel was Judge Edith Jones, one of the
more conservative members of that court. Before the 5th Circuit issued
its ruling, one of the attorneys for the TRP suggested
an en banc appeal to the entire 5th Circuit or an emergency appeal to
the U.S. Supreme Court should his client lose. Such efforts from the
attorney, Jim Bopp, would not surprise me. He has not hesitated in the
past to bring his claims for relief on an emergency basis before the
Supreme Court. But I would rate the chances of a further appeal being
successful as very small. The reasoning of the 5th Circuit opinion is
solid (the meat of the ruling, on page 20 of the pdf reads: "The
intersection of § 145.003, which requires that proof of ineligibility
be conclusive, and the Qualifications Clause, which requires
inhabitancy only 'when elected,' presents an extraordinary burden to
declaring a candidate ineligible on residency grounds prior to the
election. This is because it is almost always possible for a person to
change their residency: to move to the state in question before the
election, thereby satisfying the Qualifications Clause."). The Texas
election authorities need to move forward very soon on printing ballot
materials. Tom DeLay created this mess when he decided to withdraw when
he did---rather than withdraw before running in the primary. And
finally, the Republican Party cannot get around the fact that while
there is an effort to declare DeLay ineligible because he moved out of
state, he in fact voluntarily withdrew from the race he was already in.
For these reasons, I expect further appeals to fail.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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