NEW ORLEANS — This morning the Fifth Circuit Court of Appeals heard the Texas Republican Party’s appeal of an Austin federal district court ruling prohibiting the RPT from declaring Tom DeLay ineligible to remain on the ballot as the GOP nominee from congressional district 22 (on the grounds that he has taken steps to move his residence to Virgina) and replacing him with another candidate to be chosen by Republican election officials. I attended the oral arguments, and I thought the Democrats had the much the better of the give and take. Counsel for the RPT had barely completed his first statement — “Election law should be construed to give voters the greatest possible choice” — when one of the three judges interrupted: “What do we do with the constitutional provision known as the ‘when elected’ clause?” I’m sure the Ds lawyers wanted to start doing backflips at this moment. This clause is the basis for their argument that DeLay is not ineligible.
The “when elected” clause states that a candidate, when elected, must be a resident of the state he intends to represent. Since that can’t be known conclusively until election day, DeLay cannot be ruled ineligible. The framers probably imagine a situation where a candidate because ineligible but wanted to serve, rather than the rather bizarre situation where DeLay might be eligible but doesn’t want to serve.
The Republicans argued that physical presence in another state and testimony of intention to change one’s state of residence should be enough to allow the RPT to determine that DeLay is ineligible, but the court made short shrift of that line of reasoning: “That’s irrelevant, isn’t it? The only thing that matters is the residence on the day of election.” Later, a judge pointed out that DeLay testified he couldn’t know for sure where his residence would be on election day. In fairness, none of us can know this for sure, but it’s the judge’s opinion that matters.
Late in the arguments, the other issue in the case — whether the Democrats suffered some kind of harm that gives them standing to bring the lawsuit — arose. The Republicans did much better on this point. The Democrats actually wound up suggesting, without meaning to, that they were representing the rights of GOP primary voters. But the judges did not pursue the point. After the arguments were over, James Bopp, the Republicans’ counsel, told me that judges don’t like to delve into the issue of standing, because the arguments are highly technical.
Lawyers on both sides expect the judges to issue a ruling in about two weeks. I’d say the Democrats are a heavy favorite to win — unless the standing issue takes on a larger role in the judges’ discussions about the case than it did in the courtroom.