July 07, 2006
More on the DeLay ballot ruling

I don't know what will happen in CD22 now, but I will say this: Tom DeLay sure doesn't sound like he wants to run again.

If the Republicans lose on appeal, DeLay will have to decide whether to campaign for an office from which he already has resigned.

DeLay, dressed in shorts and a baseball cap, answered the door at his Sugar Land house this afternoon, but declined to talk with a Chronicle reporter.

"I don't do this (interviews). Not at my house," he said as he closed the door. "Goodbye."

Earlier in the day, his daughter, Dani DeLay Ferro, issued a statement on his behalf.

"Tom DeLay looks forward to the correct decision being rendered by the 5th Circuit Court of Appeals. As a resident of Virginia, he cannot lawfully be on the ballot in November. It is unfortunate that the voters of the 22nd District of Texas are the ones who bear the brunt of Judge Sparks' ill-advised decision, but it is highly likely that it will be overturned and the voters will have a Texas 22 Republican on the ballot who will defeat Nick Lampson," she said.

DeLay et fille aren't the only ones who want to move on at this point. Which leads to the question: What happens if the Republicans lose the appeals, and DeLy decides to stay retired? It's too late to recruit someone to run as an independent - by law, that ship sailed in May. Maybe someone should have lit a fire under Steve Stockman, but that's water under the bridge now. I suppose the GOP could line up behind the Libertarian Bob Smither, though I suspect that would rub the rank and file the wrong way; it also might send a bad message for other campaigns - if it's okay to vote for one Libertarian, after all, why not more of them?

Which leaves one more possibility - a write-in candidacy. Can't say it's a good option - frankly, given the effort it would take to educate people how to vote for a write-in, I'd be surprised if such a candidate could get as much as 20% of the vote - but at least you can be sure he or she is a real Republican. The deadline for getting a write-in sanctioned is ten weeks before Election Day:

§ 146.025. FILING PERIOD. (a) A declaration of write-in candidacy must be filed not later than 5 p.m. of the 70th day before general election day, except as otherwise provided by this code. A declaration may not be filed earlier than the 30th day before the date of the regular filing deadline.

By my calculation, that's August 29. There's a petition requirement, which should be no problem, but that deadline will start to encroach as the appeals process proceeds. Someone is going to have to make a decision sooner rather than later. Vince has more on this as well as some other speculation, and a report on what the GOP is doing now.

Okay, there is one more scenario to consider. Paul Burka raises an interesting question:

What happens if, when the parties to the redistricting suit submit their maps to the three-judge panel next Friday, Attorney General Greg Abbott changes the boundaries of Tom DeLay's district? Would that force the panel to order new elections in the Twenty-Second, thereby rendering Judge Sparks's decision inoperative and allowing the Republican party to replace him on the ballot after all?

I should note that Greg in TX22 raised this same point in the comments here last week. He was joking, but I'd have to say that it sounds a lot less facetious now. My best guess is that the three-judge panel will be very reluctant to accept a map that doesn't take a minimalist approach to fixing CD23, so it would be more than a little risky for the GOP to only submit maps that altered CD22, which is far enough away from the 23rd that it realistically can't be considered necessary to be changed. Frankly, I think the court would reasonably conclude that making such a change would be a function for the Lege, not them. I'd love to see Rick Perry argue against that.

Meanwhile, via Political Wire, here's a story in The Hill that contains a priceless quote:

"I think it's a sad day for the voters of the 22nd district of Texas," said Gary Gillen, the chairman of the Republican Party of Fort Bend County, which is one of the four counties in that district. "I think [the ruling] denies the voters the opportunity to select the candidate they want to vote for."

Which voters is Gillen talking about? Because, as we've covered in exhaustive detail here, the selection process involves four people, selected from a pool of about 100 precinct chairs. Those are the only voters with a say in this process. Indeed, one could argue that the candidate the voters want to vote for is Tom DeLay, since he won the contested GOP primary in March. So how, exactly, does this decision deny anything to the voters? Unless of course DeLay chooses to formally withdraw, in which case I'd agree that the ballot would be limited. Given this, what's the problem?

"It's just not fair for Republicans," Gillen said. "All the time we're working through this process, [the Democrats] are out campaigning."

Oh, please. If you've got a problem, take it up with DeLay. You wouldn't be in this position if he hadn't tried to game the system. All the Democrats have done is ensure that the rules are being enforced. If DeLay were capable of following rules, you'd have had a candidate all along. So spare me the crocodile tears.

Something I want to point out from the Sparks decision, from page 14: He says the court must consider "whether the plaintiff will be irreparably harmed if the injunction does not issue" as part of its ruling. As he later says that the plaintiff (i.e., the Texas Democratic Party) did demonstrate an "irreparable injury", I have to wonder what that actually is. I presume this comes down to the question of fundraising and turnout, and since I criticized the Dems for bringing those things up, I feel I should acknowledge the role I believe they must have played in the outcome.

Some more reactions, from the Public Campaign Action Fund, and from the Texas Democratic Party:

This is not partisan victory, but a victory for the rule of law. This case was about protecting the electoral process and preserving the U.S. Constitution, and we are extremely pleased with Judge Sparks’s ruling.

Today’s ruling confirmed what we have believed all along - that this attempt by the Republican Party to replace Tom DeLay on the ballot is at best a manipulation of election law and most importantly, a sham attempt to circumvent the primary process and ignore voters in the 22nd Congressional District. We felt it was important for somebody to stand up and fight against the Republican scheme to hand-pick the candidate of their choice and subvert the most fundamental aspect of popular democracy - the right of voters to pick their representatives.

Finally, CapInside reports on another race in which the Republicans might be looking to swap out one candidate for another. This one's a State House seat, so Judge Sparks' ruling would not be relevant. Click the More link to read the relevant bits.

I'll have more of today's news links later. I drafted this last night, because this is going to be a time-consuming story, and I knew if I'd waited till today I'd never get to everything.

Democrats in the Austin area contend that there's a move afoot among local Republicans to remove high-tech executive Ben Bentzin from the general election ballot in favor of a candidate who might have a better chance of unseating Democratic State Rep. Donna Howard in House District 48. Howard surprised partisans on both sides of the aisle when she came close to knocking out Bentzin with 49.5 percent of the first round vote in a special election in January before reclaiming the seat for Democrats with 58 percent support in a February runoff. Bentzin, a wealthy former Dell Computer executive who'd been a big supporter of the arts, had been a heavy favorite initially as the candidate backed by GOP power brokers with Governor Rick Perry's endorsement and active support.

Despite the disappointing finish in the special election, Bentzin was given a second shot at Howard in the general election after running unopposed in the Republican primary. Since the special election, however, there have been few if any signs that Bentzin is actively campaigning for a fall rematch with Howard. The most recent postings on his web site, for example, are news clips that were published before the special election runoff vote almost five months ago.

Democrats initially speculated that the GOP would try to replace Bentzin in the HD 48 race with Gail King, who's worked in the banking industry and served on the Eanes School Board in the Westlake area of Austin for the past three years. More recently, however, the speculation about a possible replacement candidate in HD 48 has turned to Pamela Waggoner, a Leander school trustee and former PTA president who runs a family-owned insurance business. Democrats theorize that the GOP would prefer to have a general election challenger with experience as an educator to help neutralize Howard's background as a former Eanes School Board member herself.

If Republicans do try to replace Bentzin on the November ballot, the opinion that Sparks' issued in the DeLay case may not preclude them from doing so. Sparks ruled that Texas Republican Chairwoman Tina Benkiser did not have the authority to declare DeLay ineligible to seek re-election in November based on the grounds that he moved to Virginia in April before resigning from Congress last month.


[Sparks'] opinion suggests that the argument that Benkiser and the state party have used to support the decision to declare DeLay ineligible would be more valid in a Texas Senate or House race to which a state constitutional one-year residency requirement applies.

Posted by Charles Kuffner on July 07, 2006 to Election 2006 | TrackBack

This entire contrived and phony issue can be summed up in one sentence, taken from Kristen Mack's report in today's Houston Chronicle: "DeLay, dressed in shorts and a baseball cap, answered the door at his Sugar Land house Thursday afternoon, but declined to speak to a Houston Chronicle reporter about the judge's ruling."

What's a Virginia resident doing answering the door at a house in Sugar Land, Texas?

Posted by: Dennis on July 7, 2006 9:11 AM

On page 14 of the "Findings of Fact and Conclusions of Law," Judge Sparks did explicitly find that the TDP would suffer an "irreparable injury" sufficient for an injunction. He did not fully detail the grounds for this finding, nor was he required to.

The grounds for this finding, however, can be inferred from other statements in the document. First, on page 2, the judge sets forth TDP's assertion of irreparable injury:

TDP asserts it will be irreparably injured by these actions in several ways: (1) TDP will be injured in its own right due to the unfair advantage gained by the Republican Party of Texas ("RPT") and because TDP will have to raise and expend funds and resources to prepare an entirely different campaign; (2) TDP's voters will be injured; (3) TDP's candidate, Nick Lampson, will be injured by the unfair advantage gained by RPT, which has the benefit of hindsight, recent polling data, and opposition research, and because he will have to raise and expend funds and resources to prepare an entirely different campaign.

The judge apparently found these assertions to be backed by credible evidence, given his finding on page 5 concerning the TDP's standing to bring the suit:

Here, TDP has standing because it would be injured if RPT were allowed to declare DeLay ineligible and substitute a different nominee for the general election because TDP would need to raise and expend additional funds and resources to prepare a new and different campaign in the short time frame.

All of this is, of course, secondary to the judge's main finding, that DeLay and the Republican Party of Texas tried to game the system so that DeLay could withdraw from the race (after raising money towards his legal bills) and avoid the consequence of withdrawal--the lack of a Republican candidate on the ballot for CD-22.

Posted by: Kenneth Fair on July 7, 2006 10:20 AM

Which voters is Gillen talking about?

General election voters!

Easy question. :)

Posted by: kevin whited on July 7, 2006 10:28 AM

kevin: While I agree that general election voters may be harmed by the prospect of seeing Tom DeLay's name on the ballot, I'm not sure it's harm that the court should be cognizant of.

Posted by: Michael on July 7, 2006 12:44 PM

There is a direct line from Tom DeLay to Todd Baxter to Ben Bentzin. If Bentzin withdraws from the ticket, that direct line will extend to whoever the Rs choose to replace him.

Posted by: d on July 7, 2006 8:03 PM

How about this? DeLay gets back in the race, puts in a couple token appearances saying 'vote for me.' All of the GOP gets behind the effort and re-elects DeLay in November. The day after, he resigns, again. That keeps Lampson from getting a "default" win and gives the Republicans time to regroup for an open seat special election.

It doesn't play out the way DeLay wanted, but at least CD-22 Republicans then have a more-than-fair shot at keeping the seat.

Posted by: ascap_scab on July 8, 2006 9:25 PM

Maybe Gov. Perry will call a special session to re-re-redistrict CD22 so they can void the whole shebang and hold a "special" election in November!

I wonder if the US Supreme Court would have a problem with that?

Posted by: Mathwiz on July 10, 2006 4:32 PM