STACLU's Depth of Analysis

Perhaps I should say lack of depth, since, like most political partisans, they rarely look beyond the surface level of immediate reaction to really think about an issue. This post is a textbook example, where John Bambenek declares a simple double standard:

Compare and contrast these two cases:

The first, a scandal-ridden New Jersey Senator who was running for reelection abruptly resigns and drops out of the race 35 days before the election. Litigation ensues and the court decides that it should override the law under the concerns to ensure a "full and fair ballot choice" for the voters.

The second, a scandal-ridden Texas Congressman who was running for reelection resigns from office and drops out of the rice 5 months before the general election. Litigation ensures and the court decides that the candidate who no longer has residence in the district must remain on the ballot and there should be no exception to the law.

What is the difference between the two cases? The first was a Democrat, the second a Republican...Citizens should take note at, yet again, the bipolar nature of the court system, and the routine differing application of the law depending on who is involved. If ever there was a case against judicial activism and reform of the courts, this episode would be it.

But this is utter nonsense. Bambenek acknowledges that one was tried in a state court and one in a Federal court, but he doesn't bother to think through how that changes his conclusion of bias. First of all, the notion that "the courts" have a single perspective is ridiculous, particularly when we're talking about two entirely different levels of courts. Judges for state courts are almost always elected, while Federal judges are not. And every judge brings his own perspective and they differ wildly.

Thus, the notion that "the courts" apply the law differently to Democrats than to Republicans is just plain idiotic - especially in light of the fact that a majority of the judges on the Federal bench were appointed by Republicans, not Democrats. The answer to why there was a different outcome in these two cases has nothing to do with partisan bias and everything to do with the fact that they involved different courts and different issues. His accusation of partisan bias ignores several key facts.

Fact #1: The 5th circuit ruling today on DeLay was unanimous, and it included Judge Edith Clement, a conservative judge appointed by Bush and on the short list for a Supreme Court appointment. Does Bambenek really think that Clement is just biased against Republicans?

Fact #2: The Lautenberg involved only questions of state law and was decided by the state supreme court. DeLay's case, on the other hand, involves questions of Federal law, constitutional law in particular. The issue was whether the Republican Party of Texas had created an unconstitutional pre-election residency requirement in order to get DeLay off the ballot and replace him after he resigned his seat.

Fact #3: It was the Republican Party that moved the case to Federal court and wanted a ruling based on the Federal constitution.

Fact #4: The ruling is correct on the merits. Most election law is left to the states, but not residency requirements involving Federal office. That matter is defined by the US Constitution in the Qualifications Clause, which says that if someone lives in the state on the day of the election, they are eligible for office. Here is what the Texas law states:

The question before this Court centers on the Texas statute permitting a party officer to declare a candidate ineligible. TEX. ELEC. CODE ANN. § 145.003. An officer can do so if (1) a candidate's application for a place on the ballot indicates ineligibility or (2) "facts indicating that the candidate is ineligible are conclusively established by another public record." Id. at § 145.003(f).7 If the public record establishes ineligibility, the officer "shall declare the candidate ineligible." Id. at § 145.003(g). If the candidate is declared ineligible on or before the 74th day before the election, the candidate's name is removed from the ballot. Id. at § 145.035. The party can fill the vacancy with a replacement candidate if the new candidate is certified to the secretary of state by 5:00 pm of the 70th day before the election. Id. at § 145.036(a), § 145.037. In situations such as the one before this Court, a replacement candidate cannot appear on the ballot if the original candidate merely withdraws. See id. at § 145.036(b).

But that is exactly what happened here. DeLay withdrew his name from the ballot and he tried to pull a fast one that would allow the party to replace him on the ballot by immediately changing his residency to his second home in Virginia. But whether he lives in Virginia now is irrelevant. He is only ineligible if he doesn't live in Texas on election day, at which point, if he is elected, he would be declared ineligible. Thus, the court ruled:

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. Therefore, her application of the ineligibility statute to DeLay was unconstitutional.

The court further ruled that, even under Texas state law, the determination that DeLay would not be a resident of the state on election day was not conclusively established by the evidence. Why? Because DeLay still had a house in the district, at which his wife still maintained her official residency, and because he had been a resident of Texas for decades prior to his sudden change of official residency.

The ruling notes that the Texas courts had ruled that you could only declare a candidate ineligible if there is "no factual dispute concerning the conclusiveness of ineligibility." Given that DeLay claimed to live in the district the day before he withdrew and suddenly changed his eligibility after withdrawing, clearly there is a legitimate factual dispute as to where he actually resides now, much less in 4 months when the election takes place. From the ruling:

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.

Information that was before Benkiser showing DeLay's eligibility supports this conclusion. Benkiser had before her DeLay's original candidacy application, in which he swore that he was eligible for office. In terms of the Qualifications Clause, such a declaration necessarily contained an implicit promise that DeLay would be an inhabitant of Texas on election day. It is also likely that Benkiser knew--because the RPT confirmed his eligibility in prior elections--that DeLay had been an inhabitant of Texas for decades. Under these circumstances, the public records provided by DeLay could not have conclusively established his future residency. Predicting DeLay's future inhabitancy would have required a finding of fact, which the RPT had no authority to make. See, e.g., In re Jackson, 14 S.W.3d at 848-49.

Before accusing the courts of partisan bias and "judicial activism", one would be well served to actually read the rulings and consider the legal questions at stake. These two cases involved entirely different levels of government and entirely different legal issues. That they had different outcomes, therefore, is hardly evidence of bias on the part of "the courts". This is utterly simplistic partisan thinking that ignores all of the relevant facts.

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It should also be pointed out that by election day, Delay may be a resident of the Texas correctional system.

It was certainly a huge blunder for RPT to move the case to federal court. The story is that it was a simple case of judge shopping, but your analysis certainly points out the flaw in that tactic.

I have two questions about this all, though. Why would the federal court even accept the case? I would think they have a strong argument for declaring this entirely a state issue until action hits a specifically federal issue: election day residency.

I guess the RPT was hoping to argue that they could conclusively establish future residency, despite DeLay's sworn statement to the contrary. (Did he swear a new residency statement to the contrary?)

The second question, extremely relevant for STACLU's argument, is what is the relevant law in New Jersey? It bugs me when people make a fairness argument comparing two different state laws when there is no relevant federal issue to connect them.

The Federal court accepted the case because it involved a question of Federal law, specifically the Qualifications Clause of the constitution.

C'mon, Ed, it's obviously judicial activism. STACLU didn't like the response, therefor...when has the right used any other criterion?

Ed wrote:

The Federal court accepted the case because it involved a question of Federal law, specifically the Qualifications Clause of the constitution.

Just to expand on Ed's statement, 28 U.S.C. § 1441(b) specifically authorizes removal to Federal Court based on federal question jurisdiction under 28 U.S.C. § 1331. Furthermore, once removal happens, there is nothing the other party can do to "un-remove" the case (assuming that there really is a federal question involved).

"Removal" is the legal term that is used when a case is "removed" from a state court and transferred to a federal court.