Texas Democratic Party v. Benkiser

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2006

Charles R. Fulbruge III
Clerk
No. 06-50812

TEXAS DEMOCRATIC PARTY; BOYD L RICHIE, in his capacity as
Chairman of the Texas Democratic Party,

Plaintiffs - Appellees,

v.

TINA J BENKISER, in her capacity as Chairwoman of the
Republican Party of Texas,

Defendant - Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

The chair of the Republican Party of Texas (“RPT”) declared

Representative Tom DeLay ineligible for election to the 22nd

Congressional District of Texas. After the RPT declared DeLay

ineligible, but before the Secretary of State removed his name from

the ballot, the Texas Democratic Party (“TDP”) sought an injunction

to prevent the removal of his name and to prevent the RPT from

replacing DeLay with a new candidate. The district court granted

the injunction, holding that the RPT, through its leadership,

created an unconstitutional pre-election residency requirement. We
AFFIRM on the constitutional grounds enumerated by the district

court and also AFFIRM on the alternative state law ground that the

declaration violated the Texas Election Code.

I. FACTS AND PROCEDURAL BACKGROUND

On June 7, 2006, Defendant Tina J. Benkiser, the chairwoman of

the RPT, declared DeLay ineligible for reelection as the United

States Representative for Texas’s 22nd District. She acted under

the Texas Election Code provision that allows a party chair to

declare a candidate ineligible. TEX. ELEC. CODE ANN. § 145.003(f)

(Vernon 2003). DeLay had represented the 22nd District since 1984

and had won the Republican primary in March 2006. DeLay, however,

announced on April 3, 2006, that he would resign from Congress and

not seek reelection. Benkiser declared DeLay ineligible after

receiving a letter from him advising her that he had moved to

Virginia.1 The letter, dated May 30, 2006, included copies of

DeLay’s Virginia driver’s license, Virginia voter registration, and

employment withholding form reflecting Virginia as his residence.

It is undisputed that Benkiser intended to replace DeLay on the

ballot with a new candidate chosen by the RPT.

The TDP filed this suit in Texas state court on June 8, 2006,

seeking declaratory and injunctive relief. The RPT removed the

case to federal court, where on June 26, 2006, the court held a

1
On May 26, 2006, Benkiser had received a draft of the same
letter for her review.

2
hearing on the merits. After receiving post-hearing briefs from

both parties, the district court held that Benkiser’s declaration

of DeLay’s ineligibility violated the Qualifications Clause of the

Constitution. The court granted a permanent injunction that barred

Benkiser from declaring DeLay ineligible and certifying to the

Texas Secretary of State any candidate for the 22nd District other

than DeLay. The court also declared that DeLay is “not ineligible”

to be the Republican Party nominee and voided Benkiser’s previous

declaration. Finally, it prohibited the Secretary of State from

removing DeLay’s name from the ballot for the general election

unless DeLay withdraws. The RPT appeals, arguing that the TDP

lacks standing and that the district court erred in granting the

injunction against Benkiser.

II. STANDARD OF REVIEW

The district court’s interpretation of the Qualifications

Clause is reviewed de novo. See United States v. Osborne, 68 F.3d

94, 98 (5th Cir. 1995). Other legal issues, including questions of

state statutory interpretation, also are reviewed de novo. See

Stephens v. Witco Corp., 198 F.3d 539, 541 (5th Cir. 1999). We

accept the district court’s findings of fact unless clearly

erroneous. Hughes Training Inc. v. Cook, 254 F.3d 588, 592 (5th

Cir. 2001). Its decision to grant a permanent injunction after its

decision on the merits is reviewed for abuse of discretion.

McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003).

3
 III. DISCUSSION

A. The TDP Has Standing

Before addressing the merits of this appeal, we must determine

whether the TDP has standing to sue. To satisfy the standing

requirement, a plaintiff must show: (1) an injury in fact; (2) that

is traceable to the defendant’s challenged conduct; and (3) that is

likely to be redressed by a favorable decision in the district

court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992); McCall v. Dretke, 390 F.3d 358, 361 (5th Cir. 2004). We

hold that the TDP has both direct and associational standing.

1. The TDP Has Direct Standing

First, the TDP has direct standing because DeLay’s replacement

would cause it economic loss. The district court found that the

TDP would suffer an injury in fact because it “would need to raise

and expend additional funds and resources to prepare a new and

different campaign in a short time frame.” Tex. Democratic Party

v. Benkiser, __ F. Supp. 2d __, 2006 WL 1851295, *2 (W.D. Tex. July

6, 2006) (hereinafter “Dist. Ct. Op.”). This finding of financial

injury is not clearly erroneous because it is supported by

testimony in the record. In addition, economic injury is a

quintessential injury upon which to base standing. E.g., Barlow v.

Collins, 397 U.S. 159, 163–64 (1970).2

2
See also Taxation with Representation of Washington v.
Regan, 676 F.2d 715, 723 (D.C. Cir. 1982) (“[I]t is clearly
evident that [the plaintiff] will be harmed if its contributors

4
 The RPT argues, however, that the TDP should be expected to

absorb any additional costs that a replacement candidate would

cause in order to promote the state’s interest in voter choice. In

addition, the RPT points out that its own candidate will have to

put together a campaign in a short period of time. These fairness

arguments have no place in the standing analysis. Indeed, the

RPT’s briefs confuse the issue of whether the TDP has shown an

injury in fact with the different question of whether the TDP has

a cause of action. The cases the RPT cites to support its fairness

arguments were themselves decided on the merits.3 In short,

regardless of the equities in this case, injury to the TDP’s

proverbial pocketbook is an injury in fact for standing purposes.

Turning to causation and redressability, the RPT’s declaration

of ineligibility and replacement of DeLay with a different

candidate would be a but-for cause of the TDP having to expend

additional money on a new campaign strategy. And the district

cease giving it money.”), rev’d on other grounds, 461 U.S. 540
(1983); Buckley v. Valeo, 519 F.2d 821, 871 n.130 (D.C. Cir.
1975) (holding that a political party had standing because
“disclosure [of contributors’ names] would cause loss of
contributions from those who currently insist that their gifts
remain confidential”), aff’d in part, rev’d in part on other
grounds, 424 U.S. 1 (1976).
3
See California Democratic Party v. Jones, 530 U.S. 567
(2000); Anderson v. Celebrezze, 460 U.S. 780 (1983); Democratic
Party of the United States v. Wisconsin ex rel. La Follette, 450
U.S. 107 (1981).

5
court’s injunction prevents the declaration of ineligibility and

replacement, thereby redressing the TDP’s injury.

A second basis for the TDP’s direct standing is harm to its

election prospects. The TDP’s witnesses testified below that if

the RPT were permitted to replace DeLay with a more viable

candidate, then its congressional candidate’s chances of victory

would be reduced. In addition, according to the TDP, “down-ballot”

Democratic candidates, like county commissioners and judges, would

suffer due to the change’s effect on voter turnout and volunteer

efforts. The RPT contends that these harms do not amount to an

injury in fact. Voluminous persuasive authority shows otherwise.4

We find these cases persuasive because a political party’s interest

in a candidate’s success is not merely an ideological interest.

4
See Smith v. Boyle, 144 F.3d 1060, 1061–63 (7th Cir. 1998)
(Illinois Republicans had standing to challenge state voting
rules that disadvantaged Republican candidates); Schulz v.
Williams, 44 F.3d 48, 53 (2d Cir. 1994) (Conservative Party
official had standing to challenge opposing candidate’s position
on the ballot where the opponent “could siphon votes from the
Conservative Party” candidate); Owen v. Mulligan, 640 F.2d 1130,
1132–33 (9th Cir. 1981) (holding that “potential loss of an
election” was an injury in fact sufficient to give Republican
party official standing); Democratic Party of the United States
v. Nat’l Conservative Political Action Comm., 578 F. Supp. 797,
810 (E.D. Pa. 1983) (three-judge panel) (holding that Democratic
Party had Article III standing because challenged action
“reduce[d] the likelihood of its nominee’s victory”), aff’d in
part and rev’d in part on other grounds sub nom. Fed. Election
Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S.
480, 489–90 (1985); Bay County Democratic Party v. Land, 347 F.
Supp. 2d 404, 423 (E.D. Mich. 2004) (holding that party had
standing to challenge voting rules that could “diminish [its]
political power”).

6
Political victory accedes power to the winning party, enabling it

to better direct the machinery of government toward the party’s

interests. See Storer v. Brown, 415 U.S. 724, 745 (1974). While

power may be less tangible than money, threatened loss of that

power is still a concrete and particularized injury sufficient for

standing purposes.

Having found injury in fact in the TDP’s threatened loss of

political power, we also find causation and redressability. The

injury threatened to the TDP’s electoral prospects is fairly

traceable to Delay’s replacement and likely would be redressed by

a favorable decision, which would preclude a Republican replacement

candidate.

2. The TDP Has Associational Standing

In addition, the TDP has associational standing on behalf of

its candidate.5 Associational standing is a three-part test:

(1) the association’s members would independently meet the Article

III standing requirements; (2) the interests the association seeks

5
The TDP contends it also has associational standing to sue
on behalf of (1) the party’s noncandidate members and
(2) Democratic voters more broadly. Out-of-circuit authority
supports at least the former contention. See Gable v. Patton,
142 F.3d 940, 946 (6th Cir. 1998); Smith v. Boyle, 959 F. Supp.
982, 985–86 (C.D. Ill. 1997), aff’d as modified, 144 F.3d 1060
(7th Cir. 1998); but cf., e.g., Gottlieb v. Fed. Election Comm’n,
143 F.3d 618, 621–22 (D.C. Cir. 1998) (holding that voters’
interest in influencing the political process was too speculative
a ground upon which to base standing). We need not finally
resolve whether the TDP could sue on behalf of Democratic voters
or noncandidate party members because we find that the TDP has
standing on the grounds addressed.

7
to protect are germane to the purpose of the organization; and (3)

neither the claim asserted nor the relief requested requires

participation of individual members. See Hunt v. Wash. State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977).

Here, Nick Lampson, the Democratic party’s candidate for

DeLay’s House seat, would have standing for similar reasons that

the TDP has direct standing. The RPT’s actions threaten his

election prospects and campaign coffers. Persuasive authorities

establish that such injuries are sufficient to give a candidate

standing to protest the action causing the harm. See Krislov v.

Rednour, 226 F.3d 851, 857 (7th Cir. 2000); Fulani v. Hogsett, 917

F.2d 1028, 1030 (7th Cir. 1990); Fulani v. League of Women Voters

Educ. Fund, 882 F.2d 621, 626–27 (2d Cir. 1989). In short, the

first element of associational standing is satisfied.

With respect to the second element of associational standing,

the TDP undoubtedly seeks to protect its organizational interests.

As the Supreme Court has noted, the goal of a political party is to

gain control of government by getting its candidates elected. See

Storer, 415 U.S. at 745.

As to Hunt’s third element, nothing requires the participation

of Lampson himself. Lampson’s interests are fully represented by

the TDP; after the primary election, a candidate steps into the

shoes of his party, and their interests are identical. As well,

the type of relief sought, i.e., an injunction, will inure to

8
Lampson’s benefit. See Int’l Union v. Brock, 477 U.S. 274, 287–88

(1985). In sum, the TDP has standing to sue on Lampson’s behalf

under Hunt.

For the foregoing reasons, the TDP had standing to raise its

claims before the district court.6

B. Benkiser’s Acts Effectively Created a Pre-Election Inhabitancy
Requirement and so Violated the Constitution

1. Constitutional and Statutory Provisions at Issue

The question before this Court centers on the Texas statute

permitting a party officer to declare a candidate ineligible. TEX.

ELEC. CODE ANN. § 145.003. An officer can do so if (1) a candidate’s

application for a place on the ballot indicates ineligibility or

(2) “facts indicating that the candidate is ineligible are

conclusively established by another public record.” Id. at

§ 145.003(f).7 If the public record establishes ineligibility, the

officer “shall declare the candidate ineligible.” Id. at

6
We need not consider additional arguments raised by the TDP
in support of its standing. We note, though, that Texas law
provides that suits to challenge a declaration of ineligibility
may be brought by that candidate’s competitors. TEX. ELEC. CODE §
273.081 (providing a right of action to any “person who is being
harmed or is in danger of being harmed by a violation or
threatened violation of this code”); see In re Jones, 978 S.W.2d
648, 651 (Tex. App.–Amarillo 1998, orig. pet.) (candidate had
standing to challenge opponent’s eligibility); Nixon v. Slagle,
885 S.W. 2d 658 (Tex. App.–Tyler 1994, orig. pet.) (considering
on the merits a Republican Party challenge to a Democratic Party
declaration of ineligibility).
7
It is undisputed that the present case concerns the second
method for declaring a candidate ineligible.

9
§ 145.003(g). If the candidate is declared ineligible on or before

the 74th day before the election, the candidate’s name is removed

from the ballot. Id. at § 145.035. The party can fill the vacancy

with a replacement candidate if the new candidate is certified to

the secretary of state by 5:00 pm of the 70th day before the

election. Id. at § 145.036(a), § 145.037. In situations such as

the one before this Court, a replacement candidate cannot appear on

the ballot if the original candidate merely withdraws. See id. at

§ 145.036(b).

The district court held that the ineligibility statute as

applied in the present case violates the Constitution’s

Qualifications Clause by creating a pre-election residency

requirement.8 See U.S. CONST. art. 1, § 2, cl. 2. The

Qualifications Clause states:

No person shall be a Representative who shall not have
attained to the Age of twenty five Years, and been seven
Years a Citizen of the United States, and who shall not,

8
The district court did not explicitly state whether it held
the statute facially unconstitutional or unconstitutional as
applied. Much of its language, however, implies an as-applied
analysis. See Dist. Ct. Op. at *8 (“[C]onstruing the Texas
Election Code to permit such a declaration of ineligibility based
on inhabitancy at this time would be an unconstitutional
application of state law.”). Given that the statute also governs
the ineligibility of state candidacies, an as-applied holding is
appropriate. See Women’s Medical Prof. Corp. v. Voinovich, 130
F.3d 187, 193 (6th Cir. 1997) (“If a statute is unconstitutional
as applied, the State may continue to enforce the statute in
different circumstances where it is not unconstitutional, but if
a statute is unconstitutional on its face, the State may not
enforce the statute under any circumstances.”).

10
 when elected, be an Inhabitant of that State in which he
shall be chosen.

Id. The RPT argues that the statute is constitutional under the

Elections Clause because it merely acts as a procedural regulation.

See id. at art. 1, § 4, cl. 1. The Elections Clause states:

The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at
any time by Law make or alter such Regulations, except as
to the Places of chusing Senators.

Id.

2. Benkiser’s Declaration Is Unconstitutional as Applied
Under the Qualifications Clause

As the parties agree, the Qualifications Clause is exclusive

and cannot be enlarged by the states.9 U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 806 (1995) (“[T]he text and structure of

the Constitution, the relevant historical materials, and, most

importantly, the ‘basic principles of our democratic system’ all

demonstrate that the Qualifications Clauses were intended to

preclude the States from exercising any such power and to fix as

exclusive the qualifications in the Constitution.”). The plain

language of the inhabitancy requirement of the Qualifications

Clause shows that a candidate for the House of Representatives must

9
There is no dispute that when Benkiser applied the
ineligibility statute to DeLay she did so as a state actor. See
Smith v. Allwright, 321 U.S. 649, 663 (1944) (holding that in
conducting a primary, a Texas political party is “an agency of
the state”).

11
only be an inhabitant of the state “when elected.” U.S. CONST. art.

1, § 2, cl. 2.

Moreover, there is ample evidence suggesting that the Framers

deliberately chose to use the “when elected” language. As

explained by the district court, records from the constitutional

convention show that the Framers debated whether to include lengthy

inhabitancy requirements. 2 THE RECORDS OF THE FEDERAL CONVENTION OF

1787, at 217–19 (Max Farrand ed., 1911). Delegates considered

seven-year, three-year, and one-year requirements and rejected all

three. Id. The position is further buttressed by an 1808 case in

which Congress considered the election of a Representative who

moved to Maryland a mere two weeks before the election. CASES OF

CONTESTED ELECTIONS IN CONGRESS 224 (M. Clarke & D. Hall eds. 1834)

(discussing Sundry Electors v. Key, case XXVIII). Congress found

that the Representative was qualified, given that he was an

inhabitant of the state as of election day. Id. at 233.

When Benkiser reviewed the public records sent by DeLay and

concluded that his residency in Virginia made him ineligible, she

unconstitutionally created a pre-election inhabitancy requirement.

The Qualifications Clause only requires inhabitancy when that

candidate is elected. Given this language, Benkiser could not

constitutionally find that DeLay was ineligible on June 7, the date

12
she made her decision.10 Therefore, her application of the

ineligibility statute to DeLay was unconstitutional.11

Our conclusion conforms with the Texas principle that “[a]ny

constitutional or statutory provision which restricts the right to

hold office must be strictly construed against ineligibility.”

Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992). In addition,

it is supported by decisions in the Ninth and Tenth Circuits that

struck down pre-election day residency requirements. Schaefer v.

Townsend, 215 F.3d 1031, 1039 (9th Cir. 2000); Campbell v.

Davidson, 233 F.3d 1229, 1235 (10th Cir. 2000). In Schaefer,

relying on U.S. Term Limits and evidence of the Framers’ intent,

the Ninth Circuit held that a one-year pre-election residency

requirement “violates the Constitution by handicapping the class of

nonresident candidates who otherwise satisfy the Qualifications

Clause.” 215 F.3d at 1037. The Tenth Circuit, in Campbell, struck

down a Colorado law that, inter alia, required candidates to be

10
Benkiser’s testimony acknowledges this fact:

Q: [T]here’s no way you can represent to this court where
[DeLay’s] going to live on November 7th?

A: I can’t represent anything that’s going to happen on
November 7th.

11
That DeLay may have no interest in remaining a candidate
does not alter this constitutional analysis; a candidate’s
subjective interest, or lack thereof, in competing for elective
office does not speak to whether the candidate is qualified to do
so under the Constitution.

13
residents of the state for at least thirty days. 233 F.3d at

1231–35. Like the Ninth Circuit, it relied on U.S. Term Limits and

evidence of the Framers’ intent. Id. at 1233 (citing THE FEDERALIST

NO. 52 (James Madison)).12

The RPT does not dispute that the Qualifications Clause

requires inhabitancy on election day. Instead, the RPT argues that

such a determination can be made prospectively in a procedural

manner allowed by the Elections Clause.

3. The RPT’s Arguments for Finding Benkiser’s Declaration
Constitutional Under the Elections Clause Fail

States, through the Elections Clause, exercise some regulatory

authority over federal elections because “as a practical matter,

there must be a substantial regulation of elections if they are to

be fair and honest and if some sort of order, rather than chaos, is

to accompany the democratic processes.” Storer, 415 U.S. at 730.

This authority, however, is not unlimited. Any regulation of time,

place, and manner must not violate other portions of the

Constitution. See, e.g., Smith v. Allwright, 321 U.S. 649, 661–62

(1944) (“Texas is free to conduct her elections and limit her

12
Contrary to the RPT’s assertion, Schaefer and Campbell do
apply to the present case. While it is true that they concerned
facially unconstitutional statutes, the reasoning holds for an
as-applied challenge. Both emphatically hold that a pre-election
residency requirement is unconstitutional and do not limit their
holdings to their particular facts.

14
electorate as she may deem wise, save only as her action may be

affected by the prohibitions of the United States Constitution

. . . .”). In addition, “while states enjoy a wide latitude in

regulating elections and in controlling ballot content and ballot

access, they must exercise this power in a reasonable,

nondiscriminatory, politically neutral fashion.” Miller v. Moore,

169 F.3d 1119, 1125 (8th Cir. 1999). There is evidence that

Benkiser did not act reasonably and with political neutrality when

she declared DeLay ineligible. Indeed, the district court’s

description of the events surrounding the letter sent by DeLay

imply, at the very least, a lack of neutrality. Dist. Ct. Op. at

*5 n.5 (explaining that Benkiser had personally revised a previous

draft of DeLay’s letter).

More to the point, even had Benkiser acted “with political

neutrality,” her actions would not fall within the limited

authority delegated to the states under the Elections Clause. The

“manner”13 of elections “encompasses matters like ‘notices,

registration, supervision of voting, protection of voters,

prevention of fraud and corrupt practices, counting of votes,

duties of inspectors and canvassers, and making and publication of

election returns.’” Cook v. Gralike, 531 U.S. 510, 523–24 (2001)

(quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). Benkiser’s

13
The RPT does not suggest that Benkiser’s actions affect the
time or place of elections.

15
determination of ineligibility does not fall within this definition

of the “manner” of elections.

The RPT argues that the determination did affect merely the

“manner” of elections because the act was procedural and

predictive. Assuming the RPT’s argument is correct, the problem

with the theory is that the TDP makes an as-applied challenge.

Despite the RPT’s attempt to classify the declaration as merely

predictive, the evidence shows that it was not.14 Benkiser’s

declaration was based on DeLay’s current residence, not his

inhabitancy on election day. Simply put, her declaration of

ineligibility was not a mere predictive, ministerial act affecting

the “manner” of the election. It was a direct determination of

DeLay’s qualifications as a candidate. As such, the declaration

was unconstitutional and cannot be saved by the Elections Clause.

The RPT also contends that the declaration of ineligibility is

a permissible “manner” regulation because DeLay is a frivolous

candidate and removing “frivolous” candidates from the ballot

constitutes “protection of voters” under Supreme Court precedent.

This argument fails. Whenever the Supreme Court has discussed the

states’ authority to prevent “frivolous” candidates from appearing

on the ballot, it has been in the context of a candidate that will

only receive minimal support in an election. See U.S. Term Limits,

14
Q: [N]othing that you have in these public documents indicates to you
where Mr. DeLay will be on election day, does it?

A [Benkiser]: No, it doesn’t.

16
514 U.S. at 834; Storer, 415 U.S. at 743. There is no evidence

that DeLay, the incumbent candidate of a dominant political party,

will receive only minimal support. Here, we fail to see how

removing DeLay from the ballot would protect the voters, inasmuch

as it was the voters themselves who selected DeLay as the

Republican candidate for the general election.

Even if Benkiser’s declaration could be construed as a

“manner” regulation, it would only survive a constitutional

challenge if it would not “exclude classes of candidates from

federal office.” U.S. Term Limits, 514 U.S. at 832–33; see also

Schaefer, 215 F.3d at 1035 (asking whether state action has “the

likely effect of handicapping an otherwise qualified class of

candidates”). Given that Benkiser’s method of application would

exclude, or at a minimum handicap, the pool of nonresident

prospective candidates, it is unconstitutional under U.S. Term

Limits.15

C. The RPT Failed to Meet the Standards of the Ineligibility
Statute

Apart from the federal constitutional questions, this case

presents a state-law statutory question. For the purposes of this

15
The Secretary of State asks this Court to find the
ineligibility statute constitutional by applying the canon of
avoidance. As explained above, this is an as-applied challenge
to Benkiser’s specific acts. Therefore, the canon of avoidance
is not an appropriate analytical vehicle. In addition, courts
facing similar questions did not even consider the canon. See
Schaefer, 215 F.3d at 1039; Campbell, 233 F.3d at 1235.

17
section, we assume arguendo that it would be constitutional for a

state actor to make pre-election, prospective judgments about

residency and that Benkiser in fact made such a judgment. Even

granting those assumptions, the RPT’s declaration of ineligibility

would violate Texas law because DeLay’s future residency was not

conclusively established by public record.

1. The “Conclusively Established” Standard

The governing standard, “conclusively established,” bears

emphasis. Something is “conclusive” when, by virtue of “reason,”

it “put[s] an end to debate or question,” usually because of its

“irrefutability.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED

(2002).16 Accordingly, Texas courts have explained that public

records must leave no factual dispute concerning the conclusiveness

of ineligibility. See In re Jackson, 14 S.W.3d 843, 848–49 (Tex.

App.–Waco 2000, orig. pet.) (holding that a state actor under

§ 145.003 has “no fact-finding authority;” instead, she may

“administratively declare that a candidate is ineligible only when

the record conclusively establishes the candidate’s ineligibility”)

(emphasis in original); Culberson v. Palm, 451 S.W.2d 927, 929

(Tex. Civ. App.–Houston [14th Dist.] 1970, orig. pet.) (holding

that ineligibility was not conclusively established where there

remained “a fact question”). Thus refined, the issue is whether,

16
See also BLACK’S LAW DICTIONARY 308 (8th ed. 2004) (defining
“conclusive” as “authoritative,” “decisive,” or “convincing”).

18
based on the evidence properly before Benkiser on June 7, 2006,

there remained “a fact question” as to whether DeLay would reside

in Texas on election day, November 7, 2006. Palm, 451 S.W.2d at

929.

The intersection of § 145.003, which requires that proof of

ineligibility be conclusive, and the Qualifications Clause, which

requires inhabitancy only “when elected,” presents an extraordinary

burden to declaring a candidate ineligible on residency grounds

prior to the election. This is because it is almost always

possible for a person to change their residency: to move to the

state in question before the election, thereby satisfying the

Qualifications Clause.17

2. DeLay’s Future Inhabitancy Was Not “Conclusively
Established”

Although the public records relied on by Benkiser may have

conclusively established DeLay’s present residency in Virginia,

they did not conclusively establish whether he will inhabit Texas

on election day. Proof of DeLay’s present residency may suggest

17
Though we do not decide this issue, the “conclusively
established” standard might be met by party officials in less
uncertain contexts. A candidate’s age, for example, can be
established conclusively prior to the election. The problem of
inherent uncertainty is not an issue in most applications of the
statute; it is a function of the particular requirement in
question here, future inhabitancy.
As to inhabitancy “when elected,” the conclusively
established burden may be insurmountable. Although we need not
create a per se rule to decide this case, we cannot conceive of a
situation in which it could be met.

19
where he will be in the future; however, it does not put the matter

beyond dispute or question.

Benkiser relied on three public records to declare DeLay

ineligible:

1) DeLay’s Virginia driver’s license;

2) DeLay’s Virginia voter registration; and

3) An employment withholding form reflecting DeLay’s Virginia

residence.

Dist. Ct. Op. at *5. These documents do not conclusively establish

whether DeLay will be an inhabitant of Texas on November 7, 2006.

DeLay could be a current resident of Virginia, as the documents

above provide, and nonetheless move back to Texas before November

7. Indeed, Benkiser admitted in her testimony that the public

records could not prove DeLay’s residency on election day and that

DeLay could move back to Texas before election day.

Information that was before Benkiser showing DeLay’s

eligibility supports this conclusion. Benkiser had before her

DeLay’s original candidacy application, in which he swore that he

was eligible for office. In terms of the Qualifications Clause,

such a declaration necessarily contained an implicit promise that

DeLay would be an inhabitant of Texas on election day. It is also

likely that Benkiser knew—because the RPT confirmed his eligibility

in prior elections—that DeLay had been an inhabitant of Texas for

decades. Under these circumstances, the public records provided by

20
DeLay could not have conclusively established his future residency.

Predicting DeLay’s future inhabitancy would have required a finding

of fact, which the RPT had no authority to make. See, e.g., In re

Jackson, 14 S.W.3d at 848–49.

The RPT argues against this analysis on several grounds, none

of which is persuasive. First, relying on the language of the

statute (“another public record”), the RPT contends that “one . . .

public record is sufficient for a declaration of ineligibility.”

If this is true, the RPT contends, surely three public records are

sufficient. This argument ignores § 145.003’s second requirement:

that ineligibility must be conclusively established. Put another

way, any number of public records may be sufficient only if they

meet the “conclusively established” burden. Such is not the case

here.

Second, the RPT relies on Nixon v. Slagle, 885 S.W.2d 658, 659

(Tex App.–Tyler 1994, orig. pet.), for the proposition that a

prospective candidate’s voter registration form showing residence

outside the jurisdiction in question is sufficient to conclusively

establish ineligibility. The RPT’s argument ignores a key

difference between Nixon and the case at bar. Nixon involved

Texas’s state residency qualification for a state senate seat,

which required a candidate to be a resident of the relevant

district for a year preceding the election. See TEX. CONST. art.

III, § 6. Therefore, the question in Nixon was the location of the

21
candidate’s current residence for state constitutional purposes,

885 S.W. 2d. at 662, not (as here) DeLay’s future inhabitancy for

federal constitutional purposes. The latter issue is speculative

and cannot be proven conclusively by a voter-registration form

showing current residence.

Third, the RPT cites Jones v. Bush, 122 F. Supp. 2d 713 (N.D.

Tex. 2000). Its reliance on that case ignores that Jones did not

involve Texas’s state-law “conclusively established” standard. In

addition, the RPT’s use of Jones obscures that Jones’s discussion

of inhabitancy was in reference to present, not future,

inhabitancy. Jones’s definition of the term “inhabitant” cannot

make the RPT’s effort to predict DeLay’s future any more

definitive. Contrary to the RPT’s suggestion, this Court cannot

“presume that DeLay will remain an inhabitant of Virginia;” rather,

the fact must be conclusively established by public record under

Texas law. It is not.18

In conclusion, DeLay’s future inhabitancy could not be

determined conclusively without a finding of fact. His election-

18
Likewise, Jones does not provide a remedy for the
constitutional deficiencies in Benkiser’s actions. In relying on
Jones, the RPT points this Court to dicta in a nonbinding
decision from a lower court. In Jones, the district court held
that the plaintiff lacked standing, and only as an alternative
holding, in anticipation of appeal, did it address the merits.
What it did address concerned “inhabitancy” under the Twelfth
Amendment, not the “when elected” language of the Qualifications
Clause. The case is plainly inapposite.

22
day inhabitancy outside Texas was not beyond dispute or question.

Thus, Benkiser violated § 145.003 by declaring DeLay ineligible.

D. The Injunction Was An Appropriate Remedy

Apart from this case’s constitutional and statutory merits,

the RPT argues that the district court erred in granting the TDP

injunctive relief. In addition to prevailing on the merits, a

party requesting an injunction must establish that there is a

substantial threat of irreparable injury, the threatened injury

outweighs the potential injury to the opposing party, and the

injunction will not disserve the public interest. ICEE Distribs.

Inc. v. J&J Snack Foods Corp., 325 F.3d 586, 597 n.34 (5th Cir.

2003) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 392

(1981)).

1. The RPT Waived its “Irreparable Harm” Argument

In its opening brief, the RPT ties its irreparable harm

argument to its standing argument. It argues that the TDP cannot

possibly show irreparable harm because it has shown no harm at all.

The RPT’s lack-of-harm arguments have been addressed above, see

Part III.A., and found meritless.

For the first time in its reply brief, the RPT argues that the

TDP has not shown irreparable harm because it has an adequate

remedy at law. We need not consider this argument because the RPT

effectively waived it by failing to raise it in its opening brief.

See, e.g., Linbrugger v. Abercia, 363 F.3d 537, 541 n.1 (5th Cir.

23
2004). In any event, the legal remedies proposed in the RPT’s

reply brief would not make the TDP whole. We therefore reject the

RPT’s irreparable-harm arguments.

2. The RPT Does Not Make A “Comparative Harm” Argument

The RPT’s argument concerning the appropriateness of the

injunction centers on the public interest element. In fact, it

never makes on argument concerning the requirement that the TDP’s

threatened injury must outweigh any potential injury to the RPT.

Given that it has failed to raise an argument on this element, it

has certainly not proven that the district court abused its

discretion by implicitly finding that the TDP would suffer greater

harm.

3. An Injunction Would Not Disserve the Public Interest

The RPT and the TDP make conflicting public interest

arguments. The RPT claims that the district court’s injunction

reduces voter choice, requiring that an ineligible or unwilling

major-party candidate remain on the ballot and prohibiting his

replacement with an eligible candidate who would be willing to

serve if elected. The TDP responds that the injunction prevents

the RPT from perpetrating, in the district court’s phrase, “a fraud

on the voters.”

It is beyond dispute that the injunction serves the public

interest in that it enforces the correct and constitutional

24
application of Texas’s duly-enacted election laws.19 The RPT’s

arguments are not sufficiently persuasive to overcome this

conclusion. The RPT has not shown that the injunction disserves

the public interest and certainly has not proven that the district

court abused its discretion. Therefore, the RPT has not met its

burden.

E. We Will Not Consider Whether the District Court Erred by
Enjoining the Secretary of State

As an amicus curiae in support of the RPT, Texas’s Secretary

of State complains that the district court lacked jurisdiction to

enjoin him because he is not a party to this suit. The RPT,

however, does not challenge the scope of the district court's

injunction, focusing instead on standing and the merits of the

constitutional issue before the court. “[A]n amicus curiae

generally cannot expand the scope of an appeal to implicate issues

19
This conclusion also conforms with legislative intent.
Records from the 68th Texas Legislature show that the current
withdrawal provision in the Election Code, § 145.036, was drafted
to prevent unwarranted replacement candidacies. See In re Bell,
91 S.W.3d 784, 785 (Tex. 2002) (holding that “courts may consider
the legislative history and the object sought to be attained in
construing statutes” and using such history to interpret the
Election Code) (internal quotation marks omitted). Under the
former system, a candidate who won the primary could merely
decline the nomination, allowing a replacement candidate to run
in the general election. Hearing testimony shows that members of
the legislature believed that the former provision allowed a
flourishing of “stalking horses.” Hearing on S.B. 122 Before the
Senate State Affairs Comm., 68th Leg., R.S. 9:15–10:4 (Feb. 7,
1983). The current withdrawal statute resolves that problem.
While a candidate can withdraw at any time, the party can only
provide a replacement candidate under very limited circumstances.
See § 145.036(b).

25
that have not been presented by the parties to the appeal.”

Garcia-Melendez v. Ashcroft, 351 F.3d 657, 663 n.2 (5th Cir. 2003)

(internal quotation omitted). Therefore, we will not consider this

issue.

IV. CONCLUSION

For the reasons stated above, the district court did not err

when it held that the Texas ineligibility statute was

unconstitutional as applied. In addition, Benkiser failed to meet

the standards of the statute because the public records did not

conclusively establish DeLay’s ineligibility. Finally, the

injunction was an appropriate remedy. For these reasons, we

AFFIRM.

Appellant’s motion for partial stay pending appeal is DENIED

AS MOOT. Appellant’s second motion for partial stay pending appeal

or, in the alternative, motion for full stay is also DENIED.

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