At least, that's the way it seems, according to the Houston Chronicle account of a hearing before the three-judge panel that is considering DeLay's appeal:
July 31, 2006, 1:26PM
Appeals court hears from lawyers in DeLay ballot battle
By R.G. RATCLIFFE
Copyright 2006 Houston Chronicle
NEW ORLEANS — A federal appeals panel indicated today that the ability of Republicans to replace former U.S. Rep. Tom Delay on the ballot rests on whether there was "conclusive" evidence that he had moved to Virginia.
The three-judge panel of the 5th Circuit Court of Appeals did not indicate when it would rule. But questions from the panel seemed to favor the Democrats' position that Republican officials could not declare DeLay ineligible for office based on residency prior to election day.
Republican lawyer James Bopp Jr. told the panel that DeLay had given Texas Republican Chairwoman Tina Benkiser enough evidence that she could make a "reasonable prediction" that DeLay would not be a resident of Texas on election day. That evidence included a change of driver's license and voter registration, plus a letter stating he had moved to Virginia.
Bopp said that gave her the power to declare DeLay ineligible to serve if elected and opened the door for replacing him on the ballot.
But Judges Pete Benavides and Edith Clement noted that a candidate like DeLay could move back to Texas by election day and be eligible for office. They said the U.S. Constitution would prohibit a state party official from throwing a candidate off the ballot in such circumstances.
"How can it be conclusive if you can always change your voter registration," Clement asked.
Bopp said a candidate who wanted to be on the ballot could win such a case. "He has to say, No, I am going to come back." DeLay, however, has said he plans to remain a resident of Virginia indefinitely, Bopp said.
Benavides said the evidence proves where DeLay lives now but not necessarily on election day.
"I can see how it informs a decision that Mr. DeLay will not be in Texas on election day, but how is it conclusive?" Benavides said.
The U.S. Constitution says to be eligible to serve in the U.S. House a candidate must be an "inhabitant" of the state from which he is elected on election day.
At one point, Benavides also quipped: "I lost a campaign for the Texas Court of Criminal Appeals when my opponent was in Europe, but he was still a resident of Texas."
Attorneys for the Texas Democratic Party said the evidence showed that DeLay and Benkiser "manufactured" his move to Virginia so they would replace him on the ballot in violation of Texas election law.
"This is a case where the district court found manufactured evidence, a manipulation of the system, and therefore a fraud against the voters," said Democratic attorney Chad Dunn.
Under state election law, political parties are not allowed to replace nominees once opposing political parties have chosen their nominees for office.
In this case, the Democrats already have chosen former U.S. Rep. Nick Lampson as their nominee, and the Libertarian Party has Bob Smither running for the seat.
Because of that, Dunn said the Republicans tried to make DeLay ineligible by changing his residence from his home in Sugar Land to his long-time condominium in Virginia.
U.S. District Judge Sam Sparks last month agreed with the Democrats and enjoined Benkiser from replacing DeLay on the ballot for the general election.
Benavides and Judge James L. Dennis are Democratic judicial appointees, and Clement is a Republican appointee.
If DeLay does end up running for re-election, expect it to be a $10 million race. And expect it to increase pressure on Bob Ney to step aside in favor or a more competitive candidate, so Republicans don't wind up endangering two 'gimme' seats.
If DeLay is forced to seek re-election, he has several options for how to go about it. He can say that he intends to serve his full term, or he can say that he intends to step down and create a special election to fill the seat. He might draw more votes by campaigning for a new election - effectively - than he would for campaigning for himself.
If the ruling comes down against DeLay's team, it will be interesting to see what he decides to do. Either way, it will be fun to see DeLay campaigning as a victim of Democratic vindictiveness - refusing to let him walk off into the sunset, but insisting that he run again.
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