Texas Republicans said they will take their fight to remove indicted former congressman Tom DeLay from the election ballot to the U.S. Supreme Court.

The 5th U.S. Circuit Court of Appeals in New Orleans on Thursday upheld a July ruling by a federal judge that the ballot must list DeLay, who won a March primary before resigning from Congress on June 9.

Texas Republican Party chairwoman Tina Benkiser said she will appeal to the high court.

"What's happening here is the Democrat Party is trying to control the Republican nominee," said GOP attorney Jim Bopp. "I think that's fundamentally incompatible with a viable two-party system and a democratic process."

DeLay now lives in Virginia but is awaiting trial in Texas state court on money laundering and conspiracy charges alleging that illegal corporate cash helped pay for legislative campaigns in 2002.

Republicans want to pick another nominee to face Democrat Nick Lampson in November. Democrats sued to keep DeLay on the ballot because that presumably gives them an easier race and bolsters their attempts to make the indicted former House majority leader their symbol for claims of Republican corruption.

Thursday's ruling said that Benkiser acted unconstitutionally when she tried to remove DeLay as the party nominee because he had moved.

Democrats had noted that DeLay's wife, Christine, still lives in the DeLays' house in Sugar Land, just outside Houston.

Although the U.S. Constitution requires a candidate to live in-state, the question is where he is residing on Election Day, not now, the three-judge panel said.

"DeLay could be a current resident of Virginia ... and nonetheless move back to Texas before November," the opinion said.

DeLay has suggested he might actively campaign if he is left on the ballot. His daughter and spokeswoman, Dani DeLay Ferro, said Thursday that a decision on whether to campaign won't be made until the legal dispute is settled.

"Mr. DeLay continues to reside and work in the Washington, D.C., area and will make any future campaign decisions when this process is completed," she said.

If DeLay withdraws from the race — rather than being declared ineligible — by law Republicans could not replace him with another candidate.