I have just had a chance to read Texas Democratic Party v. Bensiker, the case from last week in which a federal district court reached the conclusion that Tom DeLay’s name could not be removed from the Texas ballot and replaced by a candidate named by the Republican Party. I think the court’s reasoning is sound, and that the opinion is likely to be upheld on appeal.
In a post entitled “Can Republicans Name a Replacement for Tom DeLay,” written the night Tom DeLay announced his intent to resign his seat from Congress, I explained how I expected the Republicans to proceed under Texas election law. In brief, when a candidate voluntarily withdraws from a general election after securing a party’s nomination, the party may not name a replacement. But when the candidate becomes ineligible for office (such as by dying), Texas law allows the party to name a new nominee. (There was some question in the DeLay case over which party officials could make that choice.)
What had not occurred to me at the time was that the Texas law in DeLay’s case runs smack into the Qualifications Clause of the U.S. Constitution. Article I, section 1, clause 2 of the Constitution provides: “No person shall be a Representative who shall not have attained the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an Inhabitant in that state in which he shall be chosen.” (Emphasis added.) The problem with the Texas elections code was that it allowed someone like DeLay to be declared ineligible even though he is 25, has always been a citizen, and can again become an “inhabitant” of Texas on Election Day. (This contrasts with the situation of a dead candidate, who cannot be an inhabitant of any state on election day.) Even though DeLay is a resident/inhabitant of Virginia now, there is nothing that physically prevents him from reestablishing his residency in Texas by election day.
The leading case on the conflict between state law and the Qualifications Clause is Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000), in which the Ninth Circuit held that “California’s requirement that candidates to the House of Representatives reside within the state before election violates the Constitution by handicapping the class of nonresident candidates who otherwise satisfy the Qualifications Clause.” (See also the Lowenstein and Hasen casebook at 581, briefly discussing Schaefer.) The case has a discussion of the Framers’ intent in drafting the “when elected” language of the Qualifications Clause, a discussion cited by the district court in the DeLay case.
In the end, the Texas district court concluded that DeLay could still withdraw, but a replacement could not be named to appear on the ballot.
I think there is a good chance this opinion is upheld on appeal. If so, Republicans appear to have two choices:
(1) DeLay may run for office again (then potentially resign, allowing the governor to call a special election to name a replacement), a step DeLay is considering;
or
(2) DeLay withdraws, and Republicans support a write-in candidate. My quick look at the Texas write in rules make this look like a possible strategy, but there may be wrinkles I don’t see at first glance. Even though the district is a Republican one, it will be hard for Republicans to mount a successful write-in campaign, especially if legal proceedings drag out for a while before the party unites behind a write-in candidate and explains to voters how to cast a write-in ballot.
UPDATE: Richard Winger suggests on the election law listserv a possible third option: the (GOP-dominated) Texas Legislature changes the rules regarding replacement of a candidate who withdraws from the race. That could work, though perhaps a court would not allow that to be applied retroactively (if it is indeed considered retroactive) to DeLay’s case. I’m also debating the legal issues with Brad Smith on the listserv. Follow this thread.