Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.