Judge: GOP Can’t Replace DeLay on November Ballot

A federal judge has ruled that Tom DeLay’s name must appear as the GOP nominee on the November ballot–or no name at all.

A federal judge ruled today that Republicans cannot replace former U.S. Rep. Tom DeLay on the ballot for the 22nd Congressional District race. U.S. District Judge Sam Sparks, a Republican appointee, ruled that DeLay must appear on the Nov. 7 ballot as the GOP nominee for the congressional seat that he abandoned last month. Sparks said DeLay could “withdraw” from the race under Texas election law, but that still would not allow the Republicans to replace him on the ballot.

DeLay had sought to have state Republican Chair Tina Benkiser declare him ineligible by moving from Sugar Land to his condominium in Virginia. But Sparks said that would not make him ineligible because the requirement under the Constitution is whether DeLay is an inhabitant of Texas on election day. Sparks said contradicting evidence raised questions about whether DeLay planned to remain a resident of Virginia, but he said that did not matter because DeLay could not say where he would be on election day. “The court holds that allowing Benkiser to declare DeLay ineligible at this time would amount to a de facto residency requirement in violation of the United States Constitution,” Sparks said in his opinion.

Sparks’ ruling halts the process of replacing DeLay on the ballot, but the GOP has appealed the decision to the 5th Circuit Court of Appeals. James Bopp Jr., a GOP lawyer said the party will ask that the case be rendered this month. If the Republicans lose on appeal, DeLay will have to decide whether to campaign for an office from which he already has resigned.

One would think that, given the early date, replacing DeLay on the ballot would be perfectly reasonable at this point. I’m simply not well enough versed in Texas electoral law to know whether this is the proper decision from that standpoint. The rules ought be followed; that’s my consistent position on these controversies.

I’m not sure what Sparks is referring to, however, when he says this would be “a de facto residency requirement in violation of the United States Constitution.” Indeed, Article I, Section 2, Clause 2 would seem to impose a residency requirement: “No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. [emphases added]” Virginia ain’t Texas, last I checked. Indeed, some would argue Texas is a whole ‘nother country.

Republicans might note with some chagrin, and perhaps a touch of irony, that New Jersey Democrats successfully replaced Robert Torricelli, similarly affected with concerns about his character, with Frank Lautenberg less than a month before the 2002 election and in rather flagrant violation of state law requiring such a change be made at least 48 days in place of an election. That action was affirmed by the NJ Supreme Court, which argued that the law unfairly deprived residents of a competitive election, and the U.S. Supreme Court declined to intervene.

UPDATE: One would think states would clarify their rules for replacing candidates on the ballot. There have been enough instances where the death or resignation by a candidate late in a race created havok. In addition to the cases noted above, we had the tragic death of Missouri Governor Mel Carnahan in a plane crash less than a month before he was to face incumbent John Ashcroft in a Senate race in 2000 and another plane crash that killed Senator Paul Wellstone a mere 11 days before facing Norm Coleman. In the Carnahan case, we had the absurdity of his having to stay on the ballot and Ashcroft in the unenviable position of having to campaign against a popular governor just tragically killed along with his son. Adding insult to injury, the governor made it clear he would Carnahan’s widow, Jean, to the seat until a special election a year later. In the latter case, former Vice President Walter Mondale was allowed to be added to the ballot as a last-minute replacement.

There should be a reasonable balance struck to allow for replacements in cases like Carnahan’s and Wellstone’s, at a minimum. On the other hand, we should take away the ability to “pull a Torricelli.” A reasonable window, say 90 days before the election, should be set during which no switch is permissible absent exigent circumstances such as death or debilitating injury. It’s not fair for a defeated candidate to get to bail at the last moment and a candidate with fresh legs allowed to parachute in at the end of a nasty campaign.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Everything in the Texas papers on this was saying that the Texas law was clear. Delay having to move out of the district (to make him ineligible under the law) was the only sticking point and Delay has done that.

    I can’t imagine this being upheld on appeal.

  2. Herb says:


  3. tony says:

    The problem here is that DeLay did not withdraw. The reason he didn’t is that Texas doesn’t allow candidates who voluntarily withdraw to be replaced — the purpose, which probably seemed like a good idea at the time — was to prevent Torricelli-like switch-a-roos. I think, though, that DeLay could be replaced on the ballot if he went the way of Ken Lay before the election. Sometimes this federalism thing and each state having its own laws on details is confusing and a pain, but mostly it serves us well. The difficulty here is that what REALLY happened is DeLay chose to leave the election, which Texas chose not to allow. If he was going to do that, he should have done it before the primary or the voters should have selected on of the qualified persons who challenged him. (Side question: Does anyone know why someone didn’t just get petition signatures to get on the ballot so there would be SOME competition, just in case?)

    yetanotherjohn: Texas law can’t trump the constitution, which only requires residency ON ELECTION DAY. (Republicans used that constitutional nicety to get Maryland resident Alan Keyes on the ballot for Senate in Illinois in 2004.) So, imagine.

    herb: of course, if he won, then he could resign (again) and the governor could chose his replacement. I wonder why everyone is so afraid of that option. Is DeLay that toxic in his own district?

  4. Tony,

    “yetanotherjohn: Texas law canâ??t trump the constitution, which only requires residency ON ELECTION DAY. (Republicans used that constitutional nicety to get Maryland resident Alan Keyes on the ballot for Senate in Illinois in 2004.) So, imagine.”

    Not sure where you are going with this. The judge says the Texas law (which allows replacement of a candidate if he is not a resident of the district) would require a “facto residency requirement in violation of the United States Constitution”. But as James pointed out, the constitution has an explicit residency requiremnt. Now you are right that the residency requirement in the constitution is only for election day. But I fail to see the logic that says a state law that trys to prevent a constitutional problem with residency that allows a party to replace a non-resident with a resident could be unconstitutional.

    Texas law is clear on this.

    Check out sections 145.035 and 145.036 – 145.038. You have to take his name off the ballot and the party gets to put another name. What james was talking about for handeling deceased, sick or inelgible candidates. I can’t gurantee that with the 67th, 74th, 70th, 62nd etc days before election that there isn’t a window for a problem, but we are well ahead of that. I just can’t see this being upheld on appeal.