Tom Delay

In this post, Kathy asked for my opinion on Tom Delay’s argument that the Fifth Circuit case prohibiting the Texas Republican party from replacing Delay on the November ballot conflicts “with legal rulings in 2002 when Democrats were allowed to replace New Jersey Sen. Robert Torricelli with former Sen. Frank Lautenberg on the November ballot weeks before the election. Torricelli abandoned the race amid ethics allegations.”

I put a quick comment on her post, then did some searching and found the case to which I think Delay is referring: New Jersey Democratic Party v. Samson. The results of the two cases are different: The Dems in NJ got to replace their candidate while the Republicans in Texas can not. But the two cases do not conflict.

The short answer is that the NJ case was a NJ Supreme Court decision whereas the Texas case is a federal decision. The real answer is that the law applied was different.

In the NJ case, a state statute set out procedures for replacing candidates who withdraw more than 48 days prior to the election, but said nothing about what to do if the candidate withdrew less than 48 days before the election. The question was what to do, absent a statutory directive, in the latter circumstance.

Because there was no statutory directive, in deciding that Lautenberg could replace Toricelli, the Court was guided by statements like this:

The general rule applied to the interpretation of our election laws is that absent some public interest sufficiently strong to permit the conclusion that the Legislature intended strict enforcement, statutes providing requirements for a candidate’s name to appear on the ballot will not be construed so as to deprive the voters of the opportunity to make a choice. . . .

Concerns have been expressed that by giving this deadline provision a directory, rather than mandatory, construction we will create doubts about many other sections of the election law, a law that is driven by deadlines. Our only response is that this Court has traditionally given a liberal interpretation to that law, “liberal” in the sense of construing it to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day. Obviously, there will be cases in which provisions must be interpreted strictly, mandatorily, for in some cases it will be apparent that that interpretation serves important state interests, including orderly electoral processes. But those cases must be decided on their own facts, under the law involved. This Court has never announced that time limitations in election statutes should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature’s intent. There are states that have such rules, but New Jersey is not one of them.

In Delay’s case, by contrast, the state statute clearly says that candidates can only be replaced if they are declared ineligible. Candidates who withdraw can not be replaced at all. So the question was whether or not Delay is ineligible. 

That involved two questions. First, the chair of the Texas Republican party said that Delay was ineligible today, right now, this instant. That determination, however, conflicts with the Constitution, which states:

No person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Everyone in the case agreed that states are not allowed to add to these requirements. Hence the only residency requirement is that Delay be an inhabitant of Texas “when elected.” So, by declaring him ineligible because he is not an inhabitant today, the party chair added a requirement: that the candidate be an inhabitant prior to the election. That was unconstitutional.

The second question was really unnecessary, given the answer to the first, but the Fifth Circuit went on to hold that Delay did not even meet the state’s statutory rules for ineligibility. Before a candidate can be replaced, the candidate must be “conclusively proven” ineligible. Because people can move at any time, it is impossible to conclusively prove in June that a candidate will not live in Texas in November.

In short, the New Jersy court was guided by general policy concerns because there was no clear statutory guidance. Delay’s case, in contrast, was governed by clear statutory and constitutional provisions. The only question was whether he satisfied those provisions. Policy concerns like those expressed by the NJ court,  or Delay’s complaints about the Fifth Circuit taking an “up or down” vote away from Texas voters, were irrelevant. They had nothing to do with whether or not he was eligible.

Finally, I don’t suppose you need me to point out the irony of Tom Delay invoking public policy concerns to criticize a judicial decision that strictly applies statutory and constitutional law. Yet more evidence that nine time out of ten, “I oppose judicial activism” means “I only like courts that rule my way.”

 

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2 Comments on “Tom Delay”

  1. Kathy Says:

    Thanks for looking at the cases. I can make assumptions, but you know what they say about that.

    Yet more evidence that nine time out of ten, “I oppose judicial activism” means “I only like courts that rule my way.”

    Ain’t it the truth.


  2. […] …or at least the DeLay legal opinion. DeLay wants to complain that the courts aren’t consistent, but he’s comparing apples and oranges. Head over to Alablawg and see what those “activist” judges were really up to. […]


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