August 03, 2006

Initial 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 Clement [correction from my earlier post stating 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 ยง 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.

UPDATE: SCOTUSBlog reports that the TRP will seek review in the Supreme Court.

Posted by Rick Hasen at August 3, 2006 01:01 PM