All of you posted extremely good comments about my report from the Fifth Circuit. I thought I would just pull them up into the main portion of the blog and respond to them here.
First, a word about the experience of watching the oral arguments. It was so great. The courtroom is very small. The seating consisted of three benches on either side of an aisle, enough room for five people to a bench. In contrast to the Supreme Court, the audience–five or so media types, maybe a couple of other onlookers–was practically on top of the judges. The questions from the three judges were tough and followed one after another, rat a tat. Those lawyers were amazingly good at thinking on their feet. I’d think, “He’s gotcha,” and they’d have an answer with hardly a second’s hesitation. This was high-level legal jousting in a big-stakes case and it was every bit as enthralling as watching a tense baseball game. I was excited just to be there.
Now, on to the comments . . .
Come on Paul, what about the prior case law cited by Abbott. Didn’t Delay follow those elements to a t, and then more. Any mention today of Senator Torricelli pulling out in NJ and the party being allowed to name his replacement. Did the 5th address either of those ?
The world waits for you.
–Dear Anonymous. The Torricelli case did come up. The Republicans’ lawyer cited it to make the point that the court stretched the law to allow Toricelli to be replaced, because the law should be interpreted to give voters a choice. It was a strong argument. If I remember correctly–a hedge that applies to everything I say in all these responses–the chief judge, who asked most of the questions, said that the “when elected” clause took precedent. The importance of the “when elected” clause [I explained the issues in the case in posts leading up to the appeal] is that it is in the Constitution and therefore cannot be expanded by the states.
Two good questions, which lead to two others; one, didn’t our AG feel sufficiently strongly about his case to file an amicus brief at the original hearing; and two, wasn’t the NJ issue considered by Judge Sparks?
–Hey Willie: I think that Abbott felt that the trial before Judge Sparks did not go well for DeLay. That’s why he entered the case. It was a stretch. He said in his brief that a state statute had presumptively been declared unconstitutional. Note the word “presumptively.” This is the stretch. There is a big difference between “presumptively” and “actually.” I don’t know whether the NJ issue was considered before Judge Sparks. There was a chance I could have been asked to testify, and so I had to leave the courtroom.
Well, it seems to me that being a Precinct Chair in the affected district, we assumed that by following the applicable Texas Election Code that we were told would be the “correct” thing to do.
I am begining to think we should do away with this part of the code, and insert a better system to handle situations like this. But nothing can stop what is going to happen this time.
But in hindsight we might not be in this situation if this had been “headed off at the pass” (to coin a horrible cliche’) in a more timely manner.
“boyo” in Harris County
–Dear Boyo: Personally, I believe that Tom DeLay (or anyone in this situation) ought to be able to get off the ballot if he wants to, without having to concoct a reason to be ineligible. What public-policy minded folks are worried about is that a political party might be tempted to concoct that reason in order to replace a flawed nominee with a stronger candidate of their choosing. Parties could thwart the will of the voters and render primaries meaningless. The Legislature will probably take a long look at the language in the election code in 2007.
I agree that the court may not dwelve too much into the standing issue. The jurisprudence on standing is very complicated and technical. However, the court could surprise everyone and dismiss the case in its entirety for lack of standing. This would be an easy way out for the court. Given the high stakes involved in this case, I doubt this will happen. The court will likely address the legal merits of the case.
If the focus of the case is on the “when elected” clause, then Tom Delay’s testimony on where he will be on election day will be critical to determine if he is ineligible. Whatever the outcome, this case will set a precedent. If the Democrats win in the 5th Circuit, the victory will be historic.
–Dear Politico: Judge Sparks’ opinion deals with the standing issue. Even though standing was not raised at the trial, he examined the case law and concluded that the Democratic party did have standing. So the Fifth Circuit would have to overrule him on this point. If the Court does dismiss for want of standing, I feel certain that the ruling would be appealed to the Supreme Court. Of course, it is getting very late in the process. There is a practical late-August deadline for finalizing and printing ballots. As for your second point, I did hear DeLay’s testimony in the trial court before I realized that I didn’t belong in the courtroom. He was asked in cross-examination whether it was possible that he could change his residence back to Texas before election day, and he said something like, “Sure, anything is possible.” I know that some Republican observers were not happy with this answer, even though it is obviously true and reasonable. They thought he should have said, “I am a resident of Virginia and I intend to remain a resident of Virginia. I have no intention of reestablishing my residency in Texas.”
Anonymous 1, I’ve read Paul faithfully for over a decade, he’s as fair as it gets. But don’t expect him or any other left leaning blogger (i.e. Kronburg) to report such info. You can spend as much time waiting for some coverage of Benkiser for not getting a declaratory jdmt. from a state district judge to remove Delay from the ballot. Nor will Paul report anything of these single-minded Harris County radio hosts crusading against Perry over HB2. I don’t know who was teaching procedure at UT law in the pre affirmative action era, but any single panel member can grant oral arguments, and emergency motions like these require a decision in no more than 10 days.
–Dear Anonymous. Thanks but no thanks. Yes, I try to be fair, but no, I’m not a left-leaning blogger, and by the way, neither is Kronberg. Just because the Republicans running the state are on the extreme right doesn’t mean that everybody to the left of them is left-leaning. If you are referring to Anonymous 1’s mention of the Torricelli case, I did report it, though not by name. Check out my report from New Orleans below, and you will see that I refer to the Republican lawyer’s citing of the rule that election eligibility cases should be construed to give the voters the greatest possible choice. I also reported the Harris County radical conservatives’ opposition to Perry’s tax bill in my July TEXAS MONTHLY article about the governor’s race. I’m sure I mentioned it in a blog posting about the state of the race as well. If you think I would willfully ignore the Dan Patrick conservatives, you don’t understand the media. We LOVE conflict.
All of us anonymooses need to get together and decide which of us is which. I’m Anonymous Elmo and I don’t know whether the Torricelli in NJ example makes a good comparison because it’s TX election law that says the primary winner can’t just withdraw and NJ is probably different. Just like PA is different from CN where Senator Lieberman says if he loses the primary he will run as an independent. He couldn’t do that in PA where a primary loser isn’t allowed to run as an independent.
This issue with Tommie D is that he knew in January he wasn’t going to run but didn’t want to give up his ability to collect K-Street money for his campaign fund to give to his legal defense fund so he faked it.
–Dear Anonymous Elmo: There was some discussion in the Fifth Circuit about the difference between Texas election law and that of other states. The questions and answers went so fast that my notes have some gaps, but I do remember that the Texas law is stronger than the law in some other states. The Republicans were arguing that DeLay’s actions in (1) informing Republican state chairman Tina Benkiser by letter that he had changed his residence to Virginia, (2) getting a Virginia driver’s license and (3) registering to vote (and voting) in Virginia were presumptive evidence that he had changed his residence. As “Politico” points out in the comment below, the Texas statute requires “conclusive” evidence. As for your second comment about Tommie D, it may be an overstatement. I’d put it this way: He knew he MIGHT not run. And I do think that the money was an important factor. The reason I might have been called to testify in the trial court is that I wrote a piece about DeLay in the April issue of TEXAS MONTHLY that began with a conversation between a DeLay aide and Fort Bend County Republican chairman Eric Thode in which the aide asked Thode what their options were about getting off the ballot if, as seemed likely, DeLay won the primary, which, of course, he did. The Democrats wanted to use my article to argue that DeLay knew all along that he wasn’t going to run. I didn’t want to testify, but I also didn’t want to be served with a subpoena. I was grateful that Judge Sparks said that testimony about DeLay’s intentions was irrelevant.
Today’s article in the Houston Chronicle sheds more light on the types of questions the judges were asking. Even if one assumes that the evidence used to determine Tom Delay was ineligible was not manufactured, the question that needs to be answered is whether the letter, voter registration card, etc. are legally sufficient to make a “conclusive” determination that Tom Delay will not be in Texas on election day. This may be a question of first impression for the 5th Circuit Court of Appeals, but it must be addressed to avoid any further confusion. Perhaps the court will issue new guidelines on the types of evidence that can be considered to make a conclusive determination that a congressional candidate is indeed ineligible under Texas law.
–Dear Politico: If Judge Sparks is right, then whether the letter and other evidence of his intention to move his residence are “conclusive evidence” under the Texas Election Code doesn’t matter. All that matters is where DeLay resides “when elected.” Sparks said that the constitutional requirements (at least 25 years of age, at least seven years of American citizenship, and a citizen of the state in which he is running “when elected) are exclusive and cannot be expanded by the Texas Legislature.
Thanks to all for their comments.