CLOWNS to the LEFT of ME; JOKERS to the RIGHT (1 of 2)

And I am still here, stuck in the middle with you.

A couple of weeks ago, I posted a heated comment on S o S.  I was completely responsible for the tirade; but it wasn’t all my fault.  I had just learned that a 2006 legal case out of Texas set the precedent for a successful court challenge which could have  blocked that state from printing the name of Barack Obama on their 2008 primary or general election ballot.  And, adding insult to injury, I discovered that Attorneys Orly Taitz and Gary Kreep knew about this case at the time of Mr. Obama’s inauguration.

Still, re-visiting my convoluted explanation proved, I should not post when I am angry.

Today’s post  provides a calmer and more comprehensive lay explanation of the seminal role that case, Texas Democratic Party (“TDP”) v. Republican Party of Texas (“RPT”) 459 F.3d 582 (2006) could have played before now to correct some of the infirmities we have identified with the process that got the name Barack Obama printed next to the D on the ballot in the 2008 Presidential (Electors) election in Texas; and the role it can still play to forestall these same problems in 2012.  First, a brief history of the case.


When Tom DeLay (R-TX) won the primary in March 2006 to get his name written next to the R on the Texas ballot, again, the chances that in the November election he would lose the seat he had held representing the 22nd District since 1984 seemed little to none.  “But that was before Tony C. Rudy, his former deputy chief of staff, pleaded guilty to conspiracy and corruption charges, telling federal prosecutors of a criminal enterprise being run out of DeLay’s leadership offices.”  In March 2006, Mr. DeLay announced, he would soon resign from Congress. DeLay to Resign from Congress Now, according to that Washington Post article, “under Texas law he must either die, be convicted of a felony, or move out of his district to be removed from the November ballot.”

Close, but no cigar.

In May, Mr. DeLay sent a letter to Ms. Tina J. Benkiser, Chair of the RPT, advising he had established legal residency in Virginia.  As proof, he provided copies of his VA driver’s license; VA voter registration; and employment withholding form reflecting VA as his residence.  Texas Election Code §145.003(f) allows a party Chair to declare a candidate ineligible.  So, based on Mr. DeLay’s public announcement he would not seek re-election; and the receipt of these VA documents, Ms. Bensiker declared candidate DeLay ineligible to run for Congress.  Under TX law, only the names of eligible candidates may be printed on the ballot. However, before the SoS could remove Mr. DeLay’s name from the TX ballot, Attorney Boyd Richie, elected one month earlier as Chair of the TDP filed suit in state court to halt such action, arguing the RPT had no authority under either Texas state election law or the Qualifications Clause of the U.S. Constitution to determine the winner of the R primary was now ineligible to participate in the November election.  Defendant RPT removed the case to federal district court in Texas, taking advantage of procedural rules that allow cases relying on both state and federal law, to be heard in federal court.

(When a federal court hears a case that is based on both a federal and a state cause of action, the court deliberates on the state issues according to the law in that state.  Thus, in effect, for the purpose of ruling on whether the RPT had violated the TX statute allowing political party Chairs to determine candidate eligibility, the court looked at both the state (TX) law and any state (TX) cases decided under that law, honoring the jurisprudential principle of stare decisis, that is, ruling on subsequent cases consistent with rulings in former cases.  This meant, the ruling issued by the federal district court in Texas based on state (TX) law, could only be used as precedent in subsequent cases heard in Texas, in either state or federal court, involving state (TX) law.  On the other hand, the ruling in federal district court on the issue of the federal Qualifications Clause; could be ported into both federal and state courts in other jurisdictions.)

The federal district court found that the RPT had violated both state (TX) and federal law; ruled it could not determine Mr. DeLay was ineligible; and permanently enjoined the SoS from removing Mr. DeLay’s name from the November ballot.  The RPT appealed; the federal appeals court upheld the lower court’s ruling.  Here is a summary of that decision.


First, the court found the TDP had standing to bring the case.  It reasoned, if the RPT was allowed to replace Mr. DeLay’s name with the name of another candidate on the ballot; then mounting a new campaign against this new opponent would impose an economic “injury in fact” on the TDP.  This injury was “redressible” and, indeed was redressed by the court through an injunction prohibiting the SoS from removing Mr. DeLay’s name from the ballot.  Also, if the RPT replaced Mr. DeLay with a stronger candidate against the D candidate, the D’s could suffer a real loss of power, another particularized factor in standing.  Plus, the court found the TDP had “associational” standing, meaning, pursuing the case did not require the participation of affected individuals, that is, a specific D candidate disadvantaged by the RPT’s conduct.  The court explained, after the primary, the candidate and the party have identical interests, that is, getting the candidate elected. (The court pointed out, of course, if Nick Lampson, the D candidate for Mr. DeLay’s seat, wanted to bring this case, he had standing to do so, too, based on these same reasons.)

Qualifications Clause

The Constitution requires the candidate for Representative must live in the state at the time of the election.  The court agreed the RPT could not know prospectively whether Mr. DeLay would satisfy this residency requirement.   By determining in May he was not eligible, the court said Ms. Benkiser had unlawfully created a “pre-election inhabitancy requirement” not found in the U.S. Constitution.

Texas Election Law

This is the money holding.  The language here will inform how to bring the case that will prevent the state of Texas from printing the name of Barack Obama on the 2012 Presidential (Electors) ballot.  (Remember, we only elect Electors in the general election; but even the D’s would not steal the election for Barack Obama at the level of the vote of the Electors, in December, when people believe they elected the President in November’s general election.  See NEVER LESS THAN a TREASON (2 of 2).)

Here is the complete section of the court’s decision dealing with the TDP’s charges, the RPT violated TX election law.  (I have omitted all annotations, which can be accessed in the link provided to the appellate case, above.)

Apart from the federal constitutional questions, this case presents a state-law statutory question. For the purposes of this section, we assume arguendo that it would be constitutional for a state actor to make pre-election, prospective judgments about residency and that Benkiser in fact made such a judgment. Even granting those assumptions, the RPT’s declaration of ineligibility would violate Texas law because DeLay’s future residency was not conclusively established by public record.

DeLay’s Future Inhabitancy Was Not “Conclusively Established”

Although the public records relied on by Benkiser may have conclusively established DeLay’s present residency in Virginia, they did not conclusively establish whether he will inhabit Texas on election day. Proof of DeLay’s present residency may suggest where he will be in the future; however, it does not put the matter beyond dispute or question.

Benkiser relied on three public records to declare DeLay ineligible:

1) DeLay’s Virginia driver’s license;

2) DeLay’s Virginia voter registration; and

3) An employment withholding form reflecting DeLay’s Virginia residence.

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.

The RPT argues against this analysis on several grounds, none of which is persuasive. First, relying on the language of the statute (“another public record”), the RPT contends that “one … public record is sufficient for a declaration of ineligibility.” If this is true, the RPT contends, surely three public records are sufficient. This argument ignores § 145.003’s second requirement: that ineligibility must be conclusively established. Put another way, any number of public records may be sufficient only if they meet the “conclusively established” burden. Such is not the case here.

Second, the RPT relies on Nixon v. Slagle, 885 S.W.2d 658, 659 (Tex App.-Tyler 1994, orig. pet.), for the proposition that a prospective candidate’s voter registration form showing residence outside the jurisdiction in question is sufficient to conclusively establish ineligibility. The RPT’s argument ignores a key difference between Nixon and the case at bar. Nixon involved Texas’s state residency qualification for a state senate seat, which required a candidate to be a resident of the relevant district for a year preceding the election. See Tex. Const. art. III, § 6. Therefore, the question in Nixon was the location of the candidate’s current residence for state constitutional purposes, 885 S.W.2d. at 662, not (as here) DeLay’s future inhabitancy for federal constitutional purposes. The latter issue is speculative and cannot be proven conclusively by a voter-registration form showing current residence.

Third, the RPT cites Jones v. Bush, 122 F.Supp.2d 713 (N.D.Tex.2000). Its reliance on that case ignores that Jones did not involve Texas’s state-law “conclusively established” standard. In addition, the RPT’s use of Jones obscures that Jones‘s discussion of inhabitancy was in reference to present, not future, inhabitancy. Jones‘s definition of the term “inhabitant” cannot make the RPT’s effort to predict DeLay’s future any more definitive. Contrary to the RPT’s suggestion, this Court cannot “presume that DeLay will remain an inhabitant of Virginia;” rather, the fact must be conclusively established by public record under Texas law. It is not.

In conclusion, DeLay’s future inhabitancy could not be determined conclusively without a finding of fact. His election-day inhabitancy outside Texas was not beyond dispute or question. Thus, Benkiser violated §145.003 by declaring DeLay ineligible.

In other words, under Texas elections law, if a party Chair can conclusively establish in advance of the day of the election that, based on the record, a Congressional candidate will not satisfy the residency requirement under Article I section 2 of the U.S. Constitution, s/he may determine the candidate is ineligible for office and cause the SoS to remove the name of that candidate from the ballot.  But this advance determination of ineligibility could not be “conclusively established” under the set of facts of this case.  However, establishing Presidential eligibility under the Qualifications Clause in Article II section 1 need not await the day of the election.  After all, a candidate for President cannot acquire the status of “natural born citizen” prospectively or retroactively.

And, while the Chair of the political party is not a fact finder under the law for the purpose of determining whether a candidate is eligible for the office sought; s/he may find ineligibility where this status is conclusively established in the record.

In CLOWNS to the LEFT of ME; JOKERS to the RIGHT (2 of 2), I construct the legal case that will enable those Plaintiffs with standing in Texas to establish, they have found the fact of the ineligibility of candidate Barack Obama conclusively established in the record.

(to be continued)


Freedom costs.

14 Responses to CLOWNS to the LEFT of ME; JOKERS to the RIGHT (1 of 2)

  1. ksdb says:

    Thought you might be interested in this story about high schooler in Texas:

    When the Republican Party of Texas Convention comes to Dallas this June, Carroll High School student Christopher Houser will be there

    – – –

    While at the state convention, Houser will present a resolution he authored concerning candidate eligibility. The resolution states, “A candidate running for office should be required to reside within the geographical boundaries of the office sought. A candidate must submit proof of qualifications for the office being sought, including proof of citizenship and in the case of the presidential candidate, a complete and certified copy of their original birth certificate.”

    Houser said he became concerned with this issue because he has questions about whether President Barack Obama is truly a United States citizen. He said he doesn’t believe it has been proven that Obama was born in Hawaii.

    ksdb: Poor kid; absent evidence to combat the slings and arrows sure to come his way, he will be eaten alive. (See if you can get him to this blog, to bone up on his civics! He could start with, OUT of the MOUTHS of BABES.) ADMINISTRATOR

  2. Michelle says:

    jbjd-Wow-I read this straight through, I will let it twirl around in my brain (what’s left of it, sanity that is) and come back and study it again later.
    “Still, re-visiting my convoluted explanation proved, I should not post when I am angry.” I did find that one hard to follow, but I don’t blame you, you are usually such a cool headed logical thinker (not one of my virtues) this all, all of it is just sickening to folks who love their country, the Constitution, their fellow Americans, and those in the service of our country. When I settle down I will send it to my favorite places-I sent one of your articles to a reporter yesterday-Sun Sentinel/South Florida requesting journalistic integrity.

    Michelle: I was referring to the less than clear message I left in the comments a couple of weeks ago, pointing out the fact, Orly Taitz and Gary Kreep misused the TDP v. RPT case in Keyes v. Bowen, failing to appreciate the power of the legal precedent in this case WHEN BROUGHT IN THE CORRECT JURISDICTION, which, of course, is Texas.

    Now, wait till you see part 2 of 2. It is as if all of the work I have already done was designed to be used in this case I will be outlining. As we keep saying, this is incredible! ADMINISTRATOR

  3. Michelle says:

    jbjd-All I can say is Thank God for Yiddish: faklempt
    I have been in this state of being, since learning of all of this during the election cycle of 08. As soon as you finish your work, boy am I going to pass it on, starting with our Florida A/G.
    Incredible-sometimes it takes the star student to unravel the tangled web of deceit. Are you still going to be on drkates Wednesday?

    Michelle: I love it when you talk yiddish! (I am sure you know, tonight Jews begin the celebration of Passover.) Incredibly, just today, I used that word in class! Yes; I will be on Revolution Radio with drkate on Wednesday, at 9:00 PM ET. (I have to post this!) Here is a link; pass it around! ADMINISTRATOR

  4. This is a monumental find! Great work, jbjd. I really appreciate the way you clearly outline it for us laypeople. I’ll be following this with keen interest.
    Thank you!

    PortiaElizabeth: Thank you; I know! azgo sent this to me; he liked it for a different reason. Since that reason was not on point with the present work, I set it aside. But I always look at what readers send, eventually. So, when I had some free time, I read it. I could not believe my eyes! I emailed azgo immediately; he was so happy. Then, I did a search for the case, to see whether it had been used again. And that led me to Keyes v. Bowen, which case was filed in November 2008. Now, I was livid. (I explain some of this in 2 of 2.)

    I will be on Revolution Radio with drkate on Wednesday night, 9:00 PM ET. Here is a link. Pass it around! ADMINISTRATOR

  5. paralegalnm says:

    Interesting bit of legal wrangling.

    However (comments omitted by jbjd)

    “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” –Thomas Jefferson
    to William Johnson, 1823

    paralegalnm: No one gets to define NBC but the federal appeals court. No one. ADMINISTRATOR

  6. Michelle says:

    jbjd-My Mom grew up in a Yiddish neighborhood and spoke Yiddish-best part cooked that way too, best food in the whole world, bar none.
    PBS did a story with this book as a guide
    Jews, God, and History By Max I. Dimont
    I’m so upset I can’t find it now. I’m almost sure the producers name was Matthew Goldberg (young guy). It was so beautifully filmed, the man has the the eye of an artist. I learned so much. It started at Abraham and ended to the present day. I know you and your son will love it. Beautiful, educational and informative. I’ll try to find it-they repeat good shows here.
    All God’s blessings on you and your family this Passover Season.

    Michelle: Thank you so much. (You probably know more yiddish than I do! But, I can write Hebrew (a little)!) Chag sameach. (Literally, holiday happy.) ADMINISTRATOR

  7. TeakWoodKite says:

    jbjd, remarkable.

    TWK: Thank you. Use this in the best of health. ADMINISTRATOR

  8. Michelle says:

    jbjd-just a short FYI, I’m sure you are a wreck with the flooding. The drkatesview info: Breitbarttv., hillbuzz, Oil for Immigration and Defend our Freedoms. Take care, don’t hurt yourself.

    Michelle: Thank you. I am going to be so sore tomorrow. Here’s the cycle: sop up standing water, dump; replace wet sheets/towels in front, put in washing machine spin cycle; sop up standing water, dump; get spun sheets/towels, put on floor in front of wet sheets/towels; sop up standing water… In between, I lie on the couch – I put the legs up on rubber wheels, turned sideways – to catch my breath and catch up on the computer. The man with the wet vac won’t be here for a few hours; the water in the laundry room next door is inches high, and seeping into our apartment. What a mess.

    I am ALMOST done with “Clowns…” 2 of 2; I really wanted that available for people to read before tonight. Maybe… ADMINISTRATOR

  9. […] Clowns to the Left of Me; Jokers to the Right (1 of 2), we examined TDP v. RPT, learning that under Texas law, if the ineligibility of a candidate for […]

  10. connie says:

    jbjd, What a great job you did discovering all this in Texas. I wonder if you were able to get any information on how Richey was selected for his job?

    connie: azgo sent TDP v. RPT to me, finding it interesting for an unrelated reason. When i read it – I read everything readers submit, eventually – I immediately saw the application spelled out here, and said so. azgo was thrilled; I was ecstatic. That’s when I did a search to see whether anyone else had used this case (in the way it was intended) and found this case had been ‘used’ by Taitz and Kreep in Keyes v. Bowen, in CA where. Of course, it could have no effect there, as the significant holding was based on Texas state law. (Neither they nor anyone else brought such a case in the proper jurisdiction.)

    I have not looked into how Boyd Richie got his job. Let me know what you find out. ADMINISTRATOR

  11. Cabby - AZ says:

    jbjd – Having read your posts today on another site, I want to thank you for the encouraging words. Being so convinced that you are right in recommending the need for action at the state level where applicable, I recently posted the link to your website on another popular blog. This was for the benefit of Texas citizens who comment there and were praising AZ for the bill pending re. proof of eligibility. They were lamenting about their own state. That was an excellent opportunity to “clue” them in by strongly recommending that they access your site and scroll down to the articles re. Texas AG and also “Clowns to the Left of Me; Jokers to the Right.” I hope you get some serious traffic.

    Cabby – AZ: Thank you. As for the AZ legislation, well, I had promised at some point to propose model legislation intended to ensure only the names of eligible candidates would appear on state ballots. And, as I have stated, this could take the form of rules promulgated by the SoS qua chief election official. But there are problems with the AZ legislation which I will discuss later. For now, I believe we need to demonstrate that we know how to fix the 2008 election. ADMINISTRATOR

    P.S. I just saw your comment on that other blog; I get hits from them all the time, and I check back to see which article is popular. Well, this is so funny. You call me “Conservative.” afrocity lists me on her blog as “liberal/independent.” Some on cw’s blog called me a “Democrat,” while others said I was a “Republican.” My voter registration is “Unenrolled.” (Note, this category is different from “Independent,” which is a recognized political party. Being “Unenrolled” allows me to vote in either the D or R primary and yet retain my Unenrolled status.)

  12. […] to VA and was a legal resident of that state.  (CLOWNS to the LEFT of ME; JOKERS to the RIGHT (1 of 2) and (2 of 2); and […]

  13. […] has previously been discussed several times on the “jbjd” blog.  See, for example, CLOWNS to the LEFT of ME; JOKERS to the RIGHT (1 of 2) and (2 of 2); and JUDGE ABBOTT WOULD ORDER TDP CHAIR BOYD RICHIE TO DECLARE PRESIDENTIAL CANDIDATE […]


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