Why the Fifth Circuit Was Wrong About Tom DeLay

JURIST Guest Columnist Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of Law, says that the Fifth Circuit ruling blocking Texas Republicans - at the instance of Texas Democrats - from declaring Tom DeLay ineligible to run again for his Texas congressional seat sets a bad precedent for the American electoral system by moving disputes between the major political parties from the hustings to the courts...



The Fifth Circuit last week (Texas Democratic Party v. Benkiser, -- F.3d — (5th Cir., Aug. 3, 2006)) sustained a federal District Court ruling that prevented Texas Republicans from declaring Tom DeLay ineligible to run again for his seat in the United States House of Representatives. DeLay resigned his post as House Majority Leader following his indictment by a Texas grand jury last fall. Faced with sagging poll numbers and mounting legal fees, DeLay decided to resign from the House in April. Because he won the Republican primary in March, however, Texas law prevented Republicans from replacing DeLay on the ballot. So long as DeLay remained alive and eligible, he could not be replaced.

Although he is a good Republican soldier, DeLay was not prepared to die for his party. But he was willing to do the next best thing; he moved to Virginia. Because the United States Constitution (Article I, § 2) requires that House members be "Inhabitants" of the states from which they are elected, a Virginian can not represent Texas.

Following DeLay's "move," the Republican Party Chair, Tina Benkiser, duly announced that DeLay was no longer eligible and could be replaced. (Benkiser was delegated this authority by Texas law, as was the Democratic Party Chair, and thus was clearly a "state actor" for constitutional purposes.) The Texas Democratic Party then sued Benkiser in state court claiming that Benkiser violated Texas law and the Article I, § 2. Arguing that one need only be a Texas resident when elected, Democrats claimed that Benkiser's "anticipatory" finding was unconstitutional. The end result, they argued, was that DeLay could not be replaced.

Benkiser removed the case to federal court, where Judge Sparks (a Bush I appointment) found both a properly pleaded federal question and standing on behalf of the Democratic Party to contest DeLay's eligibility. Turning to the merits, Judge Sparks concluded that Article I prevented the Republican Party Chair from declaring DeLay to be ineligible before the election. After all, DeLay might move back to Texas on election day, which is all that Article I demands.

A bi-partisan panel of the Fifth Circuit unanimously affirmed. The Democratic Party had standing, it reasoned, because Democrats would be forced to expend more money on a new campaign if DeLay were replaced. Further, the Democratic Party's "election prospects" might suffer if substitution were allowed. Both injuries could be directly traced to DeLay's eligibility.

Benkiser is wrong for four reasons, the first three of which are peculiar to DeLay's case, and the last of which has broader ramifications. First, Article I clearly does not prohibit the Texas Republican Party from removing and replacing DeLay. If, for example, Texas law authorized the replacement of any candidate who willingly chose to withdraw, there would be no constitutional problem. Benkiser's decision to remove DeLay had a federal flavor only because of its justification—ineligibility. Defensive justifications, however, are rarely sufficient to support federal jurisdiction. Although the Republicans did not contest it—indeed, they had removed the case—the federal District Court had no business getting involved in the controversy.

Second, even assuming federal jurisdiction, the Texas Democratic Party's economic and political injuries were not directly caused by DeLay's eligibility; rather, they flowed from his likely replacement. The Democratic Party certainly had standing to complain about the injustice of allowing a replacement, but this was a state-law concern. Any link between Democratic injuries and a federal constitutional violation was highly attenuated. Even assuming its injuries could be fairly traced to a violation of Article I, moreover, third-party standing precedents counsel caution in a case where a third-party's interest in a constitutional wrong contradicts that of the immediate victim. As explained below, the Qualifications Clause was designed to protect candidates, not their competitors. It would seem that if anyone is allowed to press a federal complaint based on the Qualifications Clause, it should be the candidate who is deemed ineligible—not an adversary who seeks only to shoot an easier pigeon.

Third, the federal Constitution does not prohibit a state from removing a congressional candidate who admits he does not meet Article I's age, residence and citizenship requirements. Article I was designed to prevent Congress from adding qualifications to defeat the election of rabble-rousers like John Wilkes, who in 1763 had been expelled from Parliament for criticizing England's peace treaty with France. Madison wisely thought it "improper & dangerous" to allow Congress such a broad power. The better course, Madison concluded, was to fix congressional qualifications to insure that dissidents have a voice in the political arena—at least if they choose to run. Willingness, as far as Article I is concerned, is implicit.

Last, but most important, the DeLay holding is a poor precedent for America's electoral system. Its moral is that if you don't like your opponent, sue to have him removed. Of course, the nation's major parties rarely battle ballot access between themselves. (DeLay's case is truly strange in this regard.) But they do regularly fight minor parties and independent candidates over access. Common is the case where a major-party bullies an independent off the ballot to harvest his votes. Ralph Nader's experience during the 2004 presidential election is perhaps the best-known example.

If America is truly interested in open, competitive ballots, the major parties cannot be allowed to wage this kind vigilante political justice. They should not be allowed to wage it against each other, and they cannot be trusted to wage it against minor parties and independent candidates. Matters of constitutional eligibility and local qualifications cannot be trusted to the forces of judicial combat. One's adversary should not be allowed to administratively and/or judicially challenge what amount to a licensing decision.

Do not get me wrong. I am not arguing that courts should never get involved. I do not trust the partisan bureaucrats who license our candidates either. But the impetus to turn to court must fall to the unlicensed candidate, not the competitor.

Why deny competitors standing in the context of ballot access? In short, affording judicial access to competitors breeds abuse. In any technical setting requiring the satisfaction of minute standards, a well-funded and highly motivated challenger will almost always be able to uncover errors and discrepancies. Imagine if General Motors and Ford were allowed to contest (on an expedited basis) each and every automotive licensing decision. How many Subaru owners would there be on America's highways?

Because there is no federal constitutional right to keep another candidate or party off the ballot, and no constitutional right to intervene in administrative licensing proceedings, there is no federal obstacle to abolishing major-party participation in the ballot preparation process. One party simply has no constitutional stake in whether another party gains access to the ballot. Their challenges need not and should not be heard.

In the end, Benkiser proves that strange cases make strained law. Tom DeLay is an unsavory political player who manipulated Texas law to his party's advantage. But that does not mean that constitutional principles should be abandoned. If it does, then the game of partisan politics has no rules. And if that is true, Democrats cannot complain about Richard Nixon and George W. Bush.


Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School.
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