This is another in a continuing series of reports on the effect of Supreme Court decisions on later cases. The following discussion involves the Court’s rulings in Powell v. McCormack in 1969 and U.S. Term Limits v. Thornton in 1995, barring states from adding new qualifications for membership in Congress.
The Texas Republican Party’s effort to get former Rep. Tom DeLay off of the congressional ballot for next November moved on to the 5th Circuit Court on Tuesday, a prelude to what seems increasingly like a trip to the Supreme Court. The Texas GOP wants to replace DeLay, mired in a campaign financing scandal, on the ballot to thwart the Democrats’ bid to exploit the ex-lawmaker’s troubles as a campaign issue. So far, the Democrats have succeeded in keeping him on the ballot, but further legal wrangling is a certainty.
DeLay has insisted that, since leaving Congress, he has moved to Virginia, and the Texas GOP thus concluded that he is no longer eligible to be on the November ballot, even though he won the primary election before resigning from the House. State Republicans are rushing to get a replacement on the ballot to meet a state deadline. But U.S. District Judge Sam Sparks of Austin ruled last Thursday that, under the Constitution, the question of DeLay’s residence can only be resolved as of election day — Nov. 7 — and the judge said he was not persuaded that DeLay would not return to Texas by then. No one who testified, the judge found, could say “where DeLay might be living in November 2006.” The Constitution, he added, does not allow a court to make a prediction on that point, and the Constitution will not permit a state to change the date for meeting the residency qualification.
On Monday, Texas Republican leaders filed an appeal in the 5th Circuit (docket 06-50812, Benkiser v. Texas Democratic Party), and on Tuesday, asked the Circuit Court to expedite the case. (The motion to expedite can be found here.) Tina J. Benkiser, chair of the Texas GOP, told the Court that Sept. 1 is the last possible date for a new nominee to be certified. So, DeLay must be off the ballot, she added, by Aug. 25, if he is to be declared ineligible. She urged that the Court schedule prompt briefing so that a hearing could be held July 31.
In another move on Tuesday, the state Republicans asked Judge Sparks to partially stay his ruling to allow the party to take preliminary steps to fill a vacancy, should it turn out that the Circuit Court ruled he was ineligible. “In the event that the Court of Appeals decides that DeLay is ineligible and may be replaced by another candidate, there are a number of steps [the party] must go through before this can be effected, and [the party] must fulfill these requirements according to statutory deadlines.” (The partial stay motion can be found here.)
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