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.
TDP v. RPT
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.)
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)