James Bopp, Jr., attorney for the Republican Party of Texas, explained to me moments ago the RPT’s two grounds for appealing the decision of Federal District Judge Sam Sparks that Tom DeLay’s name must remain on the ballot as the Republican nominee in Congressional District 22.
The first is that the Democratic party had no standing to challenge Republican state party chariman Tina Benkiser’s determination that DeLay was ineligible to run as the result of having moved his residence to Virginia. (Bopp argues that Democratic nominee Nick Lampson should have brought the lawsuit and that he is “hiding behind the party.”) The RPT’s legal team had previously moved to dismiss the case for lack of standing, but, as Sparks put it in his opinion, they “did not wish to urge the motion.” Nevertheless, Sparks discussed the issue of standing in the opinion: “Political parties have often been determined to have standing to challenge the constitutionality of federal or state election laws”; one of the cases he mentioned found that parties could represent the rights of voters. Normally, lawyers don’t get two bites at the apple, but I dimly remember from law school that the issue of standing can be raised at any time.
The second rationale for appeal, Bopp said, is that the Constitution allows “the times, places, and manner of holding elections for senators and representatives” to be “prescribed in each state by the legislature thereof.” The RPT is arguing that the state laws Benkiser acted under to declare DeLay ineligible are part of the “manner” of holding elections. Sparks, however, took the view that a different constitutional provision set forth the exclusive qualifications to run for U.S. represenative, which are: twenty-five years of age, seven years of citizenship, and an inhabitant, when elected, of the state from which he is chosen. Since DeLay’s residency on election day can’t be determined until November 7, he can’t be disqualified until then.
Politically, the big question is which party stands to gain from having DeLay on the ballot. In the spring, when DeLay’s approval rating resembled Nero’s after the fire, the Democrats wanted him on the ballot and the Republicans (especially his congressional colleagues who are up for reelection this year) didn’t. The Ds might want to rethink that. Now that he is out of office, DeLay’s unlovely qualities aren’t such a big deal. He can say of the Democrats, as Bopp said to me, “What they object to is democracy and voter choice,” and rail against his favorite target, federal judges. DeLay could get – it makes me ill to say this – the sympathy vote. Lampson and the Democrats might be better off now if the Republicans have to choose a replacement for DeLay in the backroom setting required by state law: Only one county chair and one precinct chair from the four counties in the district can vote. Such a fight could well divide the local party. And it would be the Democrats – noting that Rick Perry declined to call a special election – who would get to say, What the Republicans object to is democracy and voter choice.
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