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U.S. Supreme Court Justice Antonin Scalia rejected Texas Republican Party Chairwoman Tina Benkiser’s application for a stay on Aug. 7, blocking the GOP from replacing U.S. Rep. Tom DeLay on the Nov. 7 ballot. “In terms of this case, we’re at the end of the road,” says James Bopp Jr., lead counsel for Benkiser in Texas Democratic Party, et al. v. Benkiser. But Bopp, a partner in Bopp, Coleson & Bostrom in Terre Haute, Ind., says the Republican Party still has options with regard to the upcoming election. Rick Hasen, a professor and election law expert at Loyola Law School in Los Angeles, says DeLay could withdraw from the race for the 22nd Congressional District seat so that Republicans could mount a write-in campaign for a candidate. Hasen says Texas law allows write-in candidates but that it’s difficult for a candidate to run a successful write-in campaign. “That person’s name would not appear on the ballot,” Hasen says. Another option, Hasen says, is for DeLay to run for the seat and, if he wins, resign from office, allowing the governor to call a special election to name a replacement. However, Hasen adds, “It’s hard to get voters to vote for someone who says he’s going to resign.” DeLay also could opt to run for the seat and serve. A spokeswoman for the Republican Party of Texas did not immediately return a telephone call seeking comment on the party’s next step. Nick Lampson, a former congressman from Houston, is the Democratic nominee in the 22nd Congressional District race. Although DeLay won the March Republican primary for that seat, he resigned from Congress in June and notified Benkiser that he was ineligible for office because he had moved to Virginia. However, DeLay kept his home in Sugar Land. The Democrats sued Benkiser in June to block Republican officials from selecting a candidate to replace DeLay on the ballot. On July 6, U.S. District Judge Sam Sparks permanently enjoined Benkiser from declaring DeLay ineligible for the congressional seat or certifying a replacement candidate to the Texas Secretary of State. In his findings of fact and conclusions of law, Sparks wrote that construing the Texas Election Code to permit a declaration of DeLay’s ineligibility based on his current inhabitancy in Virginia would be an unconstitutional application of state law. A three-judge panel of the 5th U.S. Circuit Court of Appeals affirmed Sparks’ decision on Aug. 3. Judge Fortunato “Pete” Benavides, author of the panel’s opinion, wrote that Benkiser had “unconstitutionally created a pre-election inhabitancy requirement.” Martin Siegel, one of the attorneys representing the Democrats and a partner in the Watts Law Firm in Houston, says the rulings “enforce and preserve” the Texas Election Code. Siegel says candidates previously could withdraw from a general election at this stage in the election process. Voters would vote on so-called “stalking horse” candidates in the primary only to discover different candidates on the ballot in the general election, he says. “The [Texas] Legislature wanted to put an end to that,” Siegel says, noting that lawmakers changed the law in the 1980s. Those changes make it impossible for a party to replace a candidate on the ballot after other parties have selected their candidates, he says. The legal fight may not be over yet. Bopp says Benkiser still has a petition for writ of certiorari pending before the U.S. Supreme Court, seeking to overturn the lower courts’ decisions. Action on that petition won’t come until after the November election, he says.

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