The Fifth Circuit stymied Tom Delay's attempts to get off the ballot yesterday (via Decision of the Day). Delay has moved to Virginia, and asked to be removed from Texas's ballot because he is no longer an inhabitant of the state of Texas, which the Constitution requires him to be in order to be elected to represent a district there.

The Fifth Circuit responded that it is in fact unconstitutional to take Delay off the ballot. For better or worse, the Supreme Court has held that states can neither add to nor subtract from the election requirements imposed by the Constitution. The Fifth Circuit held that taking Delay off now, when he might still become an inhabitant of Texas by November, amounted to an unconstitutional imposition of an additional requirement.

This sounds plausible enough and appeals to my internal formalist. But I wonder why merely taking a candidate off the ballot is treated the same as stopping the candidate from being elected at all. In other words, the Fifth Circuit appears to believe that the Constitution stops a state from having a rule of the form: A candidate may be on the ballot if and only if he would be eligible to be elected as things stand. This doesn't add to the qualifications imposed by the constitution because a candidate may be on the ballot on election day if he is eligible to be elected on election day.

The last hope, it seems to me, is to get the president to appoint (and the senate to confirm) Delay to some sort of Office of the United States with an un-resignable term of at least four months, which would render him ineligible to be elected under Article 1, Section 6.

Because Veronica Mars Season 2 is not out for several weeks, and because I am almost done with Buffy the Vampire Slayer, I also continue to watch movies.

Mr. and Mrs. Smith:

This was not the movie I expected it to be. I thought it would be a fairly simple-minded action movie, largely absent any real plot or plot-devices, with Brad Pitt and Agelina Jolie shooting lots of stuff. Now, the movie is certainly not long on plot, but the relationship between the two gun-toting spies was more complicated than I had expected it to be. My only real complaint is that I would have cut the first 75 minutes of the movie down to 45-- we sort of got the point 60% of the way through the exposition, and were ready to get onto the the Brad-Pitt-and-Angelina-Jolie-shoot-other-people portion of the movie.

I am contemplating starting a "papers I've read or mean to read" blog, to help bring some order to my undisciplined reading habits. That way I won't keep saying, "I know I read about that somewhere . . . " and then drawing a blank. Think Tyler Cowen's Ethnic Dining Guide-- The Blog, only for law review articles. A potential collaborator and I are still investigating potential technologies, but if it doesn't happen, there may be a lot more posts like this one.

Thing I mean to read:

Suja Thomas, Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. (forthcoming 2007). Available on SSRN. It appears to be an intriguing thesis-- summary judgment makes the judge the civil-fact-finder in a manner inconsistently with British law in 1791. I wonder how far the provocative title will really stretch.

Sanford Levinson, One Person, One Vote: A Mantra in Need of Meaning, 80 N.C. L. Rev. 1269 (2002). Saw this mentioned in an email today-- I scandalized my Legislation class by suggesting, mostly joking, that maybe it would be safer to simply abolish redistricting altogether, per the U.S. Senate. The obsession with electoral districts of apporximately equal size intrigues me.

Jacob T. Levy, Three Perversities of Indian Law. Available on SSRN. I know only what I have picked up here and there, but indian law seems very odd to me. And where does Congress's authority to regulate the internal affairs of indian tribes come from?

Bryan H. Wildenthal, Nationalizing the Bill of Rights. Available on SSRN. After reading most of Michael Kent Curtis, Akhil Amar, their critics and some of the primary sources, I am fairly confident that the 14th Amendment incorporates the bill of rights against the states. Still, a review of the literature to date would be nice to make sure I haven't missed something crucial.