April 03, 2006

Can Republicans Name a Replacement for Tom DeLay?

With news that Tom DeLay is withdrawing from his House reelection contest, the question is what happens now in his race. It appears that the following is the applicable Texas law (putting aside any caselaw that might affect interpretation of these chapters):

Under Texas Election code section 1.005(7), DeLay was running in a 'General election for state and county officers' [, which] means the general election at which officers of the federal, state, and county governments are elected." Section 145.031 et. seq. set forth the rules for "a candidate who is a political party's nominee in the general election for state and county officers except a candidate for president or vice-president of the United States." DeLay is the party's nominee in a general election for state and county officers and he's not a candidate for president or vice president, so these rules apply.

Under 145.032, DeLay can withdraw because it is more than 74 days before election day. If he withdraws, under section 145.035, his name is omitted from the ballot. Under section 145.036, the political party's executive committee can only fill a vacancy under limited circumstances (such as catastrophic illness), none of which seem to apply to DeLay. So this route does not look like it would work for DeLay.

Instead, reports suggest he will move from Texas, thereby becoming ineligible to serve. (See section 145.003 on declaration of ineligibility.) If he is "ineligible" rather than "withdraws," section 145.036 gives the party the right to name a candidate to fill the vacancy.

There are also rumors that the governor could call a special election. Under 204.021, "An unexpired term in the office of United States representative may be filled only by a special election in the same manner as provided by Chapter 203 for the legislature, except that Section 203.013 does not apply." (203.013 sets forth a timetable for the election.) Chapter 203 sets forth the requirement of a special election, the requirement of a majority vote (meaning a runoff will be necessary if no candidate gets a majority of the vote), etc. But this would only apply to the unexpired term. There's this provision that appears to allow a replacement to run for the full term, but only if the vacancy occurs after the general election. So even if the governor calls a special election that chooses someone to serve out the rest of DeLay's current term, that does not appear to affect the nomination rules for the upcoming general election.

Posted by Rick Hasen at April 3, 2006 10:31 PM