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Section 145.036 of the Election Code governs the circumstances when a candidate can be replaced on the ballot following withdrawal or ineligibility of the candidate:
(a) Except as provided by Subsection (b), if a candidate's name is to be omitted from the ballot under Section 145.035, the political party's state, district, county, or precinct executive committee, as appropriate for the particular office, may nominate a replacement candidate to fill the vacancy in the nomination.
(b) An executive committee may make a replacement nomination following a withdrawal only if:
(1) the candidate:
(A) withdraws because of a catastrophic illness that was diagnosed after the 62nd day before general primary election day and the illness would permanently and continuously incapacitate the candidate and prevent the candidate from performing the duties of the office sought; and
(B) files with the withdrawal request a certificate describing the illness and signed by at least two licensed physicians;
(2) no political party that held primary elections has a nominee for the office sought by the withdrawing candidate as of the time of the withdrawal; or
(3) the candidate has been elected or appointed to fill a vacancy in another elective office or has become the nominee for another office.
If DeLay has withdrawn from the race (as he expressly declared in a nationally televised press conference), then he cannot be replaced on the ballot under § 145.036(b) because none of the exceptions apply.
While withdrawing candidates cannot be replaced on the ballot, candidates found to be ineligible can be replaced under § 145.036(a). Accordingly, DeLay and the GOP are pretending that DeLay did not withdraw but, instead, that he anticipates being prospectively found "ineligible" because he has announced a future intention to voluntarily re-designate his Texas home as no longer his primary residency for the express and fully disclosed intentional purpose of withdrawing himself from the race.
The U.S. Constitution provides that no person shall be a representative "who shall not, when elected, be an Inhabitant of that State in which he shall be chosen" but makes no further provision for a representative to re-designate his primary residence from one home to another for the express purpose gaming the constitutional inhabitantcy requirement.
No unbiased view of the law would allow a congressional representative under indictment to evade the express limitations of § 145.036 merely by unilaterally and prospectively declaring that his official residence will no longer be a home in the state he represents but will be another one of his residences.
There are legal obstacles to such a blatant ruse to evade the unambiguous legal effect of § 145.036. In the case of Slagle v. Hannah, for example, the Texas Supreme Court interpreted the determination of whether a candidate had withdrawn for the purposes of Tex. Elec. Code § 145.036(b) very broadly.
This is an issue worth fighting whether we win or lose. If we win, we put a stop to the blatant abuse of the Election Code. If we lose, we may still succeed in calling attention to the fact that the GOP's handpicked candidate got onto the ballot only by virtue of a wrongful scheme to game the Election Code.
Whether we win or lose, we should heed the advice of Sam Houston to "do right, and risk consequences" by pursuing justice in this matter because it's the right thing to do regardless of what some dried up Ann Coulter wannabe says about the Democratic Party and our insistence that even the "mighty" Tom DeLay is not above the laws of Texas.
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