Judge says DeLay “withdrew”

Looks like Federal Judge Sam Sparks is a little skeptical of the scheme to replace Tom DeLay on the November ballot.

“He is not going to participate in the election and he withdrew,” said U.S. District Judge Sam Sparks, who did not issue an official ruling after a daylong trial regarding DeLay’s status as the GOP nominee for the 22nd Congressional District.

Jim Bopp, a lawyer for the Republican Party of Texas, disagreed, telling Sparks “there’s been no withdrawal.” Bopp said that instead, DeLay moved to Virginia, making him ineligible and triggering a state law that allows the party to select a new nominee.

Sparks also said that if political parties are allowed to replace primary election winners with more popular candidates, “the abuse would be incredible.”

“It can happen in every race in this state for every office,” Sparks said. The Republican judge said a ruling could come as early as next week.

That’s what this is about, isn’t it? Either Tom DeLay chose not to run in November, in which case the law says that no replacement can be selected at this late date, or circumstances made him ineligible to be on the ballot, in which case the process for what happens when a candidate dies kicks in. Sparks hasn’t made any decisions yet, but it seems he understands what DeLay is up to.

And why shouldn’t Judge Sparks be skeptical when there’s stuff like this to consider?

The Democrats argued that DeLay’s move is a sham to circumvent state election laws.

Under the law, the Republican Party could not have replaced DeLay if he had simply withdrawn from the campaign after winning the party’s nomination. But state GOP Chairwoman Tina Benkiser testified that she ruled DeLay ineligible after he wrote her a letter saying he was moving to Virginia and she was presented with copies of his Virginia driver’s license, voter registration and state tax documents.

Judge Sparks seemed skeptical.

He noted that the Constitution establishes no residency requirement for a candidate of Congress. He questioned how a state party official can rule a candidate ineligible because they moved during the campaign when there is no residency requirement until a person is elected.

The judge also said he considered DeLay’s actions a “de facto withdrawal.”

Sparks questioned why DeLay’s staff, which prepared the letter stating his plans to move to Virginia, sent a draft to Benkiser several days before sending a final version.

The judge suggested that lawyers for DeLay and the Republican Party could have taken weeks to prepare a rationale that would allow the GOP to replace DeLay on the ballot.

I really don’t see how anyone can look at the facts and conclude that DeLay’s actions were anything but a deliberate choice, and that he made that choice after studying the law and finding a loophole that he then proceeded to drive a truck through. I mean, what motivated him to leave at this time? I’ve not seen any suggestion that his decision to retire and move to Virginia was in any way time-dependent. Was there a job opening that wouldn’t wait until next year?

I suppose Sparks has to decide if DeLay’s intentions matter in interpreting the law. If they don’t, then either he’s ineligible or not, and given that Texas law is generally pretty forgiving in terms of where one says one resides for voting purposes, he’ll probably be forced to rule that what DeLay did was in bounds. For what it’s worth, I tend to agree with DeLayVsWorld. For better or worse, I think the GOP is likely to prevail in this case.

Putting it another way, from the Quorum Report:

The judge said the evidence showed that DeLay simply decided that he would not complete the race. Lawyers working for DeLay then took time to figure out the best way “to manipulate the Republican Party, which he had a right to do,” Sparks said.

However, Sparks seemed troubled by the precedent set by the action, saying he was worried it could lead to widespread candidate swapping. “If (DeLay) is allowed to do this […] it can happen in every race in the state for any office”.

James Bopp Jr., Benkiser’s attorney, disagreed with Sparks’ conclusions, saying that only twice in 15 years has a candidate who won a primary been declared ineligible by the party and a replacement been named for the general election. He pointed out the other time was in 2004 when Democrats replaced a state House candidate who moved out of the district.

As for Sparks’ concerns about the damage to the political process, “it is not the job of the federal court to decide if this is good public policy or not,” Bopp said.

That’s a good thing for DeLay, since much of his legacy would be imperiled if courts did have that task.

Speaking of the courts and DeLay’s legacy, Houtopia raises an interesting point concerning another big court case on which a ruling is immiment, namely the Supreme Court and Texas redistricting:

Hey, if the court invalidates the whole Texas plan (unlikely but possible), we would revert to the 2001 apportionment lines, and candidates would all run in open primaries. Thus, Tom DeLay would get his wish to escape the ballot. There’s a tasty bit of irony to ponder — could DeLay secretly be hoping for the undoing of his own crowning political oeuvre? It’s fun to think about, isn’t it?

Indeed.

Finally, from Capitol Inside, I think this is a little Too Much Information from the Texas Democratic Party:

Texas Democratic Party employee Ken Bailey testified that DeLay had been a “lightening rod” for contributions and a prime target in light of the criminal case pending against him. Bailey said that the Democrats’ volunteer efforts and turnout would be adversely affected if the GOP was allowed to replace DeLay on the ballot.

Geez, why not complain about him stealing your lunch money while you’re at it? Didn’t we all come away from Fort Worth talking about energy and commitment for November? This case is about whether or not Tom DeLay is following the law, and what the remedy is if it can be shown that he’s not. Questions about volunteers and turnout (and fundraising – see the end of the Chron story) are irrelevant and frankly a bit insulting to the people who’ve been working their tails off both before and since DeLay’s resignation announcement. Stay focused, okay?

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