Thursday, August 03, 2006

Fifth Circuit Rules on Tom DeLay Residency Case

The panel rules 3-0 that DeLay stays on the ballot. You can get the opinion, written by Judge Pete Benavides, at Lone Star Project. The court held that:

1. Benkiser's declaration did create an unconstitutional pre-election day residency requirement.


2. Even if it did not, DeLay's future residence was not "conclusively established" by public record as required by the Texas Election Code.

One the first issue, Benavides presents a strict constructionalist view of the plain language of the residency requirement of "on election day". In this section, he underscores the intentional flexibility of congressional eligibility by citing an exhaustive list of legal authority including Texas state law cases, Madison's Federalist 52, the Sundry Electors case, and even the Records of the Federal Convention of 1787. Sorry David Wallace...It looks like you wasted 10 grand having attorneys scour those 200 year old documents. That's what you get when you use an an art and tax lawyer to write an election law brief.

Our forefathers, who naively thought "on election day" would be clear enough to everybody. In their defense, Texas Republicans did not yet exist.

Benavides also addresses the "Time, Manner, Place" argument, which is a favorite among right wing online drones. He acknowledges that state has this regulatory power over their elections, but reminds Ms. Benkiser that this power must be exercised "in a reasonable, non-discriminatory, politically neutral fashion." There is ample evidence in the record, including DeLay and Benkisers exchange of letters, that make a joke out of any claim Benkiser could have to neutrality.

Furthermore, federal case law holds that the "manner" of elections "encompasses matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, etc." Benkiser's declaration does not fall under this definition.

But to even further bury this sham of a switch-er-roo, the court rules that even if the declaration was constitutional, the records Benkiser relied on do not "conclusively establish" DeLay's residence on election day. Benevides offers this definition:

"Something is 'conclusive' when, by virtue of 'reason', it 'puts an end to debate or question', usually because of it's 'irrefutability.'"

Now consider this cited exchange from the District Court trial record:

Q: Nothing that you have in these public documents indicates to you where Mr. DeLay will be on election day, does it?
A [Benkiser]: No, it's doesn't.

The RPT made two main arguments on this issue, and the court rejected both of them. First, the RPT tried to rely on Nixon V. Slagle, a 1994 Texas case, to show that a voter registration could prove residency. The problem is that the Nixon case was about a State Senate race which required residence for a year preceding an election. The issue was not a future residence but a current residence.

Second, the court rejected the arguments based on the Jones v. Bush case I discussed last week from the amicus briefs. The problem here of course is that Jones does not have to meet the "conclusively established" standard of Texas law. And like Nixon, Jones was based on current inhabitancy. They also dismissed DeLay's supposed intent, noting that a candidate's desire or lack thereof to compete for political office does not speak to his eligibility for that office.

Incompetent wastrel Greg Abbott, sharing his love of Jewish literature

Finally, try to remember that SoS Roger Adams and AG Greg Abbott wasted your money writing an wholly irrelevant amicus brief that was so outside the scope of procedural inquiry that it was laughed out of the opinion in a brief section entitled "We Will Not Consider Whether the District Erred by Enjoining the Secretary of State."

You see, even the most average of law students knows that an amicus brief cannot raise issues in an appeal that have not been presented by the parties to the appeal. But Greg Abbott, your attorney general, does not.


Well, James Bopp, lawyer from the RPT, says to expect a statement on the issue of an appeal sometime today. I am hearing that they can request an en banc panel of all 14 judges of the Fifth Circuit and request that Scalia consider the case for the Supreme Court at the same time. I don't see either option being very fruitful. Both venues will be reluctant to hear the case. The RPT would have a better shot if they had won at any stage in the litigation, or if the decision here wasn't 3-0.

Any appeal will take time, and would probably push us right up to the September 1 deadline. My feeling is that the RPT will appeal because they have no other option. There is no way on Brahma's blue ball that DeLay is running. His campaign account is dry, and if he did run, he would have to disclose the sources of his legal defense money. Not to mention that he's a fundraising lightning rod. Oh yeah, one other small detail - He would get positively creamed. Which is how we got in this mess to begin with. And personally, I think he cut a deal to exit stage right...Maybe so Dani "Lobbyists Pour Champagne on My Nubile Body in Hot Tubs" DeLay doesn't go to jail.

Ok, that wasn't in the Fifth Circuit opinion. Just a ViewFrom22 opinion.