Judge Rules Against GOP in DeLay Case

July 6, 2006

Judge's Ruling Against GOP in DeLay Case
Not Likely to Stop Switch in Legislative Race

Democrats Concerned about Possible Move Afoot in Austin
to Find New Candidate to Run Against New State Lawmaker

By Mike Hailey
Capitol Inside Editor

Texas Republicans vowed Thursday to appeal a federal judge's ruling that prevents them from replacing former Congressman Tom DeLay on the general election ballot. But while the GOP's state leader charged that the decision in the DeLay case had thrown the federal elections process in Texas into "total chaos," the ruling does not appear to affect potential candidate lineup changes that the political parties might be considering in races for the Legislature.

Texas Democrats are hoping that U.S. Judge Sam Sparks' ruling Thursday in the Congressional District 22 dispute will effectively short circuit any plans that the GOP might have for fielding a replacement nominee in the battle for an Austin state House seat that was filled in a special election earlier this year.

Democrats in the Austin area contend that there's a move afoot among local Republicans to remove high-tech executive Ben Bentzin from the general election ballot in favor of a candidate who might have a better chance of unseating Democratic State Rep. Donna Howard in House District 48. Howard surprised partisans on both sides of the aisle when she came close to knocking out Bentzin with 49.5 percent of the first round vote in a special election in January before reclaiming the seat for Democrats with 58 percent support in a February runoff. Bentzin, a wealthy former Dell Computer executive who'd been a big supporter of the arts, had been a heavy favorite initially as the candidate backed by GOP power brokers with Governor Rick Perry's endorsement and active support.

Despite the disappointing finish in the special election, Bentzin was given a second shot at Howard in the general election after running unopposed in the Republican primary. Since the special election, however, there have been few if any signs that Bentzin is actively campaigning for a fall rematch with Howard. The most recent postings on his web site, for example, are news clips that were published before the special election runoff vote almost five months ago.

Democrats initially speculated that the GOP would try to replace Bentzin in the HD 48 race with Gail King, who's worked in the banking industry and served on the Eanes School Board in the Westlake area of Austin for the past three years. More recently, however, the speculation about a possible replacement candidate in HD 48 has turned to Pamela Waggoner, a Leander school trustee and former PTA president who runs a family-owned insurance business. Democrats theorize that the GOP would prefer to have a general election challenger with experience as an educator to help neutralize Howard's background as a former Eanes School Board member herself.

If Republicans do try to replace Bentzin on the November ballot, the opinion that Sparks' issued in the DeLay case may not preclude them from doing so. Sparks ruled that Texas Republican Chairwoman Tina Benkiser did not have the authority to declare DeLay ineligible to seek re-election in November based on the grounds that he moved to Virginia in April before resigning from Congress last month.

While Sparks said that the U.S. Constitution requires candidates for Congress to live in the state they plan to represent on the day of the election in order to be eligible. But Sparks declared in an 18-page opinion that Benkiser doesn't know where DeLay will be living in November despite documentation he's provided to show that he's relocated to Virginia. The judge said that he'd be allowing the establishment of a "de facto in-state residency requirement" if he gave Benkiser the green light to declare DeLay ineligible in order to trigger the process that Republicans have been planning to under take to replace him on the ballot. "There is no evidence that DeLay will still be living in Virginia tomorrow, let alone on November 7, 2006," Sparks wrote.

But the opinion suggests that the argument that Benkiser and the state party have used to support the decision to declare DeLay ineligible would be more valid in a Texas Senate or House race to which a state constitutional one-year residency requirement applies.

Democrats cheered the court's decision to grant a permanent injunction that State Democratic Chairman Boyd Richie had requested when he took the GOP court early last month to try to block the replacement process in the CD 22 race. Richie called the move to replace DeLay "a sham attempt to circumvent the primary process and ignore voters" in CD 22.

If Sparks' ruling is upheld on appeal, DeLay will face a stick dilemma of having to decide whether to return to Texas to jump-start a re-election bid at the same time he faces criminal charges stemming from the 2002 state House elections, to remain on the ballot without actively campaigning or to withdraw from the race and effectively forfeit the seat to former Congressman Nick Lampson, the Democratic nominee in CD 22.

Benkiser accused Democrats of pursuing an "election by litigation" strategy and desperately trying to find a way to give Lampson a clear path to the CD 22 seat because they are terrified of voters who've repeatedly rejected "liberalism" and failure to produce viable solutions to challenges facing the state.