Image: James Bopp, Tina Benkiser
Judi Bottoni  /  AP
Attorney James Bopp, left, and Texas Republican Party chairwoman Tina Benkiser are shown outside the courthouse in New Orleans on Monday.
updated 7/31/2006 5:21:06 PM ET 2006-07-31T21:21:06

Texas Republicans asked a federal appeals court on Monday to let them replace former U.S. Rep. Tom DeLay on the November congressional ballot, but Democrats argued that Texas state law requires keeping DeLay as the GOP candidate.

DeLay won a March primary before resigning from Congress in June amid a growing scandal. He is awaiting trial on money laundering and conspiracy charges connected to the financing of Texas legislative campaigns in 2002 with alleged illegal corporate money.

Barring catastrophic illness or other extreme circumstance, there is no legal way to replace Delay, Democratic Party attorney Chadd Dunn told a three-judge panel of the 5th U.S. Circuit Court of Appeals.

“It’s a high bar the Republican Party has to get over,” Dunn said.

James Bopp, arguing for Texas Republican officials, said the party should choose the candidate.

“The Democratic Party does not represent the voters in the Republican primary,” Bopp said.

Federal judge rules against Republicans
Republicans want to honor DeLay’s June 9 resignation and pick another nominee to face Democrat Nick Lampson in November. Democrats sued to keep DeLay on the ballot so they could make the indicted former House majority leader their symbol for claims that the Republicans are corrupt.

A federal judge ruled in early July that DeLay’s name had to stay on the ballot even though he quit Congress and moved to Virginia.

Republicans appealed to the 5th Circuit Court of Appeals in New Orleans.

Texas Republican Party chairwoman Tina Benkiser says she should be permitted to declare DeLay “ineligible” as a candidate because he moved to Virginia, allowing the party to pick a new candidate.

‘This would be a serious abuse’
Democratic Party lawyers argued that it couldn’t be shown conclusively whether DeLay would or would not be an “inhabitant” of Texas on Election Day. They argued he could be living in Texas that day and be eligible to serve under the U.S. Constitution. DeLay’s wife, Christine, still lives in the DeLays’ house in Sugar Land, just outside Houston.

U.S. District Judge Sam Sparks said that if he adopted the Republicans’ argument, then either political party could change candidates after a primary election merely by declaring a candidate ineligible based on a move.

“This would be a serious abuse of the election system and a fraud on the voters, which the court will not condone,” wrote Sparks, a Democrat appointed by Republican former President George Bush.

Texas law allows a political party to replace a candidate if he or she dies, becomes medically incapacitated or becomes ineligible for office. If the candidate simply “withdraws” from the race after winning his or her primary, a new candidate cannot be chosen.

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