5th Circuit Court of Appeals Agrees with Texas Democrats on DeLay Ballot Challenge

Today, a three-judge panel of the 5th Circuit Court of Appeals upheld the decision of U.S. District Judge Sam Sparks and ruled in favor of the Texas Democratic Party on the DeLay ballot challenge. As a result of the Court’s decision, Tom DeLay remains eligible to run for Congress this year as the Republican nominee from the 22nd District of Texas. The Appeals Court panel confirmed the following key findings by Judge Sparks:

• The Texas Democratic Party had the legal standing (right) to file its complaint against the Republican Party of Texas.
• Texas Republican Party Chair Tina Benkiser exceeded her authority and violated the U.S. Constitution by declaring DeLay ineligible. The Court ruled that Benkiser improperly established criteria for eligibility to Congress beyond the criteria provided for in the Constitution.
• DeLay won the Republican nomination for Congress from the 22nd District and remains the CD22 nominee unless he withdraws from the ballot.
• Tom DeLay has the right to withdraw from the ballot; however he may not be replaced.

Read the Opinion Here

Comments from noted law professor and election law expert Rick Hasen of Electionlawblog.com

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 § 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.

Excerpts from the opinion

Benkiser’s Declaration Is Unconstitutional as Applied Under the Qualifications Clause
When Benkiser reviewed the public records sent by DeLay and concluded that his residency in Virginia made him ineligible, she unconstitutionally created a pre-election inhabitancy requirement. The Qualifications Clause only requires inhabitancy when that candidate is elected. Given this language, Benkiser could not constitutionally find that DeLay was ineligible on June 7, the date she made her decision.10 Therefore, her application of the ineligibility statute to DeLay was unconstitutional.

10. Benkiser’s testimony acknowledges this fact:
Q: [T]here’s no way you can represent to this court where [DeLay’s] going to live on November 7th?
A: I can’t represent anything that’s going to happen on November 7th. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Pages 12 and 13)

The RPT’s Arguments for Finding Benkiser’s Declaration Constitutional Under the Elections Clause Fail
“While states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion.” Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).

There is evidence that Benkiser did not act reasonably and with political neutrality when she declared DeLay ineligible. Indeed, the district court’s description of the events surrounding the letter sent by DeLay imply, at the very least, a lack of neutrality. Dist. Ct. Op. at *5 n.5 (explaining that Benkiser had personally revised a previous draft of DeLay’s letter). (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 15)

The RPT also contends that the declaration of ineligibility is a permissible “manner” regulation because DeLay is a frivolous candidate and removing “frivolous” candidates from the ballot constitutes “protection of voters” under Supreme Court precedent. This argument fails. Whenever the Supreme Court has discussed the states’ authority to prevent “frivolous” candidates from appearing on the ballot, it has been in the context of a candidate that will only receive minimal support in an election. See U.S. Term Limits, 514 U.S. at 834; Storer, 415 U.S. at 743. There is no evidence that DeLay, the incumbent candidate of a dominant political party, will receive only minimal support. Here, we fail to see how removing DeLay from the ballot would protect the voters, inasmuch as it was the voters themselves who selected DeLay as the Republican candidate for the general election. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Pages 16 and 17)

The RPT Failed to Meet the Standards of the Ineligibility Statute
Apart from the federal constitutional questions, this case presents a state-law statutory question. For the purposes of this section, we assume arguendo that it would be constitutional for a state actor to make pre-election, prospective judgments about residency and that Benkiser in fact made such a judgment. Even granting those assumptions, the RPT’s declaration of ineligibility would violate Texas law because DeLay’s future residency was not conclusively established by public record. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006,Page 17)

The “Conclusively Established” Standard
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. (United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 19)

DeLay’s Future Inhabitancy Was Not “Conclusively Established”
Benkiser relied on three public records to declare DeLay ineligible:

1. DeLay’s Virginia driver’s license;
2. DeLay’s Virginia voter registration; and
3. An employment withholding form reflecting DeLay’s Virginia residence.
   Dist. Ct. Op. at *5

These documents do not conclusively establish whether DeLay will be an inhabitant of Texas on November 7, 2006. DeLay could be a current resident of Virginia, as the documents above provide, and nonetheless move back to Texas before November 7. Indeed, Benkiser admitted in her testimony that the public records could not prove DeLay’s residency on election day and that DeLay could move back to Texas before election day.(United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 19-20)

CONCLUSION
For the reasons stated above, the district court did not err when it held that the Texas ineligibility statute was unconstitutional as applied. In addition, Benkiser failed to meet the standards of the statute because the public records did not conclusively establish DeLay’s ineligibility. Finally, the injunction was an appropriate remedy. For these reasons, we AFFIRM.

Appellant’s motion for partial stay pending appeal is DENIED AS MOOT. Appellant’s second motion for partial stay pending appeal or, in the alternative, motion for full stay is also DENIED.
(United States Fifth Circuit Court of Appeals, No. 06-50812, August 3, 2006, Page 25)

Congressional Dems Reply to Partisan Perry/Craddick/Dewhurst Redistricting Plan
Dems Detail Partisanship and Voting Rights Failures in Republican Brief

as redistricting case filed briefs today in reply to the proposals submitted to the Court earlier this month suggesting remedies to correct the Voting Rights violations in the current illegal congressional map.  Also, earlier today, the Court granted motions to intervene in the case by Congressmen Lamar Smith, Henry Bonilla and Henry Cuellar.  A hearing on the case will be held in Austin on Thursday, August 3, 2006.

A summary of the reply brief filed by the Jackson Plaintiffs, who include several Texas Democratic Members of Congress, is provided below. 

The entire brief can be viewed here

Perry/Craddick/Dewhurst Plan (1418C) is partisan and disruptive
Republican Attorney General Greg Abbott, on behalf of the State Republican leadership, forfeited the opportunity to represent all Texans by submitting a proposed redistricting plan that is even more disruptive than and just as partisan as Tom DeLay’s 2003 plan.  The Perry brief essentially says the Court should place higher priority on partisan interests than restoring the Voting Rights of Hispanic voters.

• “… on closer inspection, the Perry Plan is an object lesson in how not to draw a remedial map.  Driven more by a desire to protect the region’s two Republican incumbents than to protect the federally guaranteed voting rights of Hispanic citizens in South and West Texas, the Perry Plan gratuitously shifts well over half of the four districts’ constituents (more than 1.4 million Texans) into new districts …” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 1-2)
• “To put that figure into perspective, the 2003 Plan, which redrew the entire state and engineered an immediate six-seat Republican pickup, moved less than 40 percent of all Texans into new districts…So the Perry plan would actually move more voters per district than did the 2003 Plan.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 17)
• Quoting from Justice Kennedy, “if...incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the office holder, not the voters.  By purposely redrawing lines around those who oppose Bonilla, the state legislature took the latter course.”  Follow on from Jackson reply brief, “By submitting the Perry Plan, Defendants are attempting to lead the Court down the same crooked path.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 18)

Jackson Plaintiff Plan (1406C) is narrowly tailored and maintains partisan balance
The proposal submitted by the Jackson plaintiffs and Democratic congressional interveners is narrowly tailored and maintains partisan balance consistent with the legal mandate of the Supreme Court decision.  The Jackson plan fully restores Voting Rights to Hispanic voters, respects community and regional interests, and provides incumbents of both parties a legitimate opportunity to seek and win reelection.

• “Fortunately, the Court can avoid all these problems simply by adopting the Jackson Plan (Plan 1406C) and putting it into effect for the upcoming November 2006 elections.  The Jackson Plan fully cures the defects in Districts 23 and 25, complies with all federal legal requirements, adheres to the State’s traditional neutral districting principles, and otherwise does what any court-ordered map should do:  leave well enough alone.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 2)

Perry/Craddick/Dewhurst Plan fails to remedy Voting Rights violations
The GOP plan does not restore the Hispanic voting age population of District 23 to the level that barely made it effective for Hispanic voters before it was drawn illegally in 2003. Likewise, the GOP plan fails to correct the objectionable “bacon strip” District 25, which would still stretch hundreds of miles from the Rio Grande to the outskirts of Austin.

• The Perry Plan would leave 40,000 of those illegally injured Hispanics in a district that Defendants admit is designed to elect Congressman Bonilla rather than a Hispanic-preferred candidate. (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 10)
• The Perry Plan’s District 25 continues to run nearly 300 miles north from the Rio Grande Valley (in Hidalgo County) all the way to the edge of Travis County, in the heart of Central Texas.  Indeed, the Perry Plan’s District 25 is only 20 miles shorter than the 2003 Plan’s District 25.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 14)
• “To assume that Hispanics in the Austin area and Hispanics in the McAllen area ‘belong’ in the same district is to engage in rank stereotyping.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 15)

Perry/Craddick/Dewhurst Plan is calculated to punish Democratic neighborhoods
The proposed GOP plan is excessively disruptive and calculated to punish voters who dare to prefer Democrats. The GOP plan would move 54% of the residents of the four districts affected into new districts. Every resident of Travis County (531,000, or 65%) affected by the GOP plan would be moved into a new district, and the Hispanic South Side San Antonio community would literally be split in half by this “fruit basket turns over” plan.

• “The Perry Plan splits the South Side of San Antonio and Bexar County, moving almost 128,000 residents, including 67,280 Hispanics and 29,750 African Americans, out of District 28 and into District 25, which is anchored in the Rio Grande Valley.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 26)
• The Perry Plan separates the entire South Austin Hispanic community west of Interstate 35 from the Hispanic neighborhoods of East and Southeast Austin and places it in District 23. (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 27)
• The Bexar and Travis County neighborhoods discussed here are just a few of those that would be adversely affected under the Perry Plan.  It would be cruel irony if a federal court tasked with the duty of remedying a Voting Rights Act violation ended up sundering these minorities communities and thereby silencing their already weak voice in Texas and national politics.  (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 27)

Perry/Craddick/Dewhurst Plan deliberately pairs incumbents and misleads the Court
One element of the Perry/GOP map particularly signals the cynicism and arrogance of its sponsors – their clumsy attempt to mislead the Court and the public about the pairing of incumbents. The Perry brief falsely claims that Doggett currently lives in a Republican held seat which is simply wrong.   In fact, he lives in the District he represents, CD25.

• “Thus, it appears that Defendants have knowingly replicated one of the most devious features of the 2003 Plan – pairing an Anglo Democratic incumbent with an Anglo Republican in an overwhelmingly Republican district .. Whatever one might think of such partisan manipulations when undertaken by a state legislature, they surely are ‘inappropriate for the federal court drawing a congressional redistricting map’  Balderas v. Texas, Civ. Action No. 6:01CV158, slip op. at 10.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 20)
• “Defendants have paired Congressman Smith and Congressman Doggett, while telling the Court the opposite.” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 29)
• “Perhaps Defendants’ partisan agenda shows through most clearly in their approach to ‘pairing.’  Their brief asserts repeatedly that the Perry Plan pairs no two incumbents in the same district See Fefs. Br. at 2, 10, 12-13.  That is not true…under the Perry Plan, he (Doggett) would reside in District 21, where he would be paired with Congressman Smith” (Jackson Plaintiffs’ Remedial Response Brief, July 21, 2006, page 20)