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Former U.S. Rep. Tom DeLay has withdrawn from the race for the 22nd Congressional District seat. “As a Virginia resident, I will take the actions necessary to remove my name from the Texas ballot,” DeLay says in a written statement released Aug. 8. DeLay’s announcement came the day after U.S. Supreme Court Justice Antonin Scalia rejected Texas Republican Party Chairwoman Tina Benkiser’s application for a stay of a lower court’s ruling that blocks the GOP from replacing 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 Benkiser still has a petition for writ of certiorari pending before the U.S. Supreme Court, seeking to overturn lower courts’ decisions in Texas Democratic Party. Action on that petition won’t come until after the November election, he says. The Republicans aren’t throwing in the towel on this year’s election in Congressional District 22, however. “Republicans are working together with grassroots leadership in the district to get behind and vigorously support one candidate, whether he or she is on the ballot or not,” Benkiser says in a written statement. Rick Hasen, a professor and election law expert at Loyola Law School in Los Angeles, says Republicans can mount a write-in campaign for a candidate under Texas law 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, noting that it’s difficult to get voters to do what it takes to cast a vote for a write-in candidate. 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.” [See the court's opinion.] 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 general elections at this stage in the election process. Voters would vote on so-called “stalking horse” candidates in the primaries only to discover different candidates on the ballot in general elections, 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.

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