It's the end of the road, still I can't let go*

I just read the Tom DeLay replacement opinon by the 5th Circuit panel. This was a pretty big judicial smackdown.

The panel affirmed on both the constitutional question AND the "alternative state law ground".** Moreover, the review was de novo, meaning that the court didn't have to defer to the trial judge's opinion. There was a low standard of review, and they still decided on two different grounds that DeLay would have to be on the ballot.

The smackdown is so clear that it is likely to be the end of the judicial road. The Texas GOP will still file some papers (that's the second half of the post title but you'd already figured that out), but I doubt they'll be effective. The best chance for the GOP would be to focus on standing -- in fact, given the "alternative state law ground", standing is probably the only possible issue to appeal to the Supreme Court -- but the opinion goes to great lengths to establish standing on multiple grounds. An en banc hearing is possible, but seems awfully unlikely, given the unanimity of this opinion.

I'd say that it's now 99% likely that Tom DeLay will be on the ballot in November, unless he withdraws and leaves Nick Lampson without a Republican opponent. But that seems unlikely.

* People of my age will recognize this as lyric from the worst song played as the last slow dance at high school dances.

** In case you haven't noticed, I prefer to put my quotation marks inside of punctuation, and only rarely bow to grammar convention.

UPDATE: Texas GOP lawyer James Bopp appears to be arguing that the constitional question and the state law question are one and the same. It seems to me that because of the way the court issued its opinion, he'd have a higher hurdle.

I suppose it's always possible that the Supreme Court will issue cert to decide the constitutional question. Unfortunately for the Texas GOP, because the 5th Circuit affirmed on state law grounds, it doesn't appear that a favorable constitutional ruling would allow Republicans to replace DeLay. Also, because of the state law affirmation, it might make the constitutional question moot, so SCOTUS won't look at it.

Posted by Evan @ 08/03/06 03:26 PM


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