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.
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.”