August 12, 2025 • 40 mins
For this week's episode, Matthew and Eleanor ask University of Houston law professor David Froomkin to help them break down the legal cases seeking to expel 13 Democrats from the Texas House. Does fleeing the state to break quorum equate to abandoning office?
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Episode Transcript
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Speaker 1 (00:18):
Hello, and welcome to the Texas Tribune trip cast for Tuesday,
August twelfth. I am Matthew Watkins, editor in chief of
the Tribune, and I am joined by, as usual, our
law and politics reporter Eleanor Clebanoff. Hello, Eleanor, Hello Matthew.
Speaker 2 (00:33):
How are you.
Speaker 1 (00:34):
I'm doing well. We were just talking about how you've
been doing the yeomen's work of googling synonyms for unprecedented Yes.
Speaker 2 (00:46):
Very March twenty twenty vibes, but more on the Texas
legal politics side.
Speaker 1 (00:51):
I feel like this is just I feel like the
common debate among reporters right now is like, what's another
word for flea? Flee the state. I feel like people
are really you know, going DeCamp, you know, absconde, Yeah,
really stretching the limits of our our language here to find.
Speaker 2 (01:10):
We've gotten some negative feedback on flea people who are
sort of supportive of the Democrats and feel like flea implies,
you know, uh, doing so without perhaps without cause or
without you know, sort of more of a cowardly move,
which I think we've certainly heard Republicans sort of framing
it that way. I kind of think flee is, you know,
you can flee in defense of democracy.
Speaker 1 (01:32):
Right, you can flee, you know, a nuclear bomb.
Speaker 2 (01:36):
Exactly, say that people who flee nuclear bombs are towers.
Speaker 1 (01:41):
I don't think there's a value judgment here.
Speaker 3 (01:43):
That's what we say.
Speaker 2 (01:44):
Yeah, so yeah, we uh abscond on the lamb.
Speaker 3 (01:50):
That one feels more criminal. Yeah yeah, yeah.
Speaker 1 (01:53):
So we're struggling eleanor dot clipping off at texts Tribune
dot org. If anyone has any language recommendations for us.
Speaker 3 (02:00):
My email has been you don't need me.
Speaker 1 (02:06):
I apologize.
Speaker 2 (02:07):
I will say one thing, and I will I want
to publicly may a cool book for this. I made
a an error in a story today and people emailed
me so aggressively. But to be fair, it was warranted.
I engaged in bill clements erasure. I misstated what year
Texas elected its first Republican governor. People emailed me, so
(02:27):
I rate on behalf of bill clements, and that's fair.
Speaker 3 (02:30):
I did get it.
Speaker 2 (02:31):
I was an air I introduced an error in there,
and uh, it's amazing how intense people were about that.
Speaker 1 (02:37):
They always say, you know, you don't mess with the
bill clements hive. That's exactly. Yeah, the rule number one
of Texas journalism. Yeah, exactly, exactly, exactly right. All right, Well,
this week, if you haven't picked up up and picked
up on it already, we are going to continue talking
about the quorum break and we're going to take a
(02:57):
little visit to law school, which I think is probably
exciting to you. Yeah, you know, catching people up. I'm
sure most people listening to the show already know. But
Texas Democrats in the Texas House remain outside of the
state they're fleeing. Has continued, if you will, but the
fight has shifted maybe a little bit more to the courtroom.
(03:21):
State leaders since we last spoke, including Greg Abbott and
Ken Paxson. We'll get into that in a little bit,
have filed lawsuits seeking to remove thirteen Democrats in the
Texas House, including House Democratic Leader Jean wu from office,
basically claiming that they have abandoned their duties as elected officials.
It is an unprecedented step in which the Texas Supreme
(03:44):
Court will likely ultimately decide the fate of those lawmakers
in the coming days or maybe weeks. Joining us to
help us understand this is David Frumkin, a law professor
at the University of Houston who studies, administrative law, election law,
and democratic and constitutional theory, which sounds like a pretty
good CV for the conversation. We're about to have the
guy we needed exactly. So David, thank you for joining us.
Speaker 4 (04:07):
Great to be with you.
Speaker 1 (04:08):
All Right, So I'm going to start with you, Eleanor,
and I'm going to ask you to explain what these
legal filings are before we go to David, to help
us understand whether there's anything to these legal filings. So
just sum up with for us as quickly as you
can what legal actions Abbot and Paxton have taken against
(04:31):
these Democrats.
Speaker 2 (04:32):
Yeah, and I will say this is like one of
the best parts definitively of being a journalist is that,
like you can wake up on a Monday a week
ago and have never heard the phrase quote warrntoe in
your life, and by the end of the week, I'm
sitting here being like everybody knows, like to file an
information on a quote warrant to proceeding, you got to
follow these different steps thanks to legal experts like Professor
(04:52):
Frumpkin who educate us all on the fly.
Speaker 3 (04:55):
But that's basically what this is.
Speaker 2 (04:56):
They have asked first Abbot, first Governor abbot On has
asked the Texasupreme Court to remove House Democratic Caucus Chair
Gene Wu through this quot warrn toe preceding Attorney General
packs and followed up with his own suit on seeking
to remove thirteen members through the same mechanism, one Wu
and twelve others.
Speaker 3 (05:17):
And uh, yeah, that's it's.
Speaker 2 (05:19):
An unprecedented filing to be used for a quorum break.
It is basically if a public official. It can also
be using corporate settings, but putting that aside for a second,
if a public official has vacated their office or abandoned
their office, it is how you get them.
Speaker 3 (05:36):
Formally removed from office.
Speaker 2 (05:39):
There are there's like rare precedent and how this has
been used in you know these sort of in general,
like how do you get somebody out of office?
Speaker 3 (05:48):
It has never been used, you know, quorm break setting.
Speaker 1 (05:50):
Okay, So David, I want to ask you first with
a very simple question. I mean, is there anything laid
out in the Constitution or elsewhere that sets sort of
defined what kind of abandoning office? Abandoning your office means?
Is that like what do we have to go with
to evaluate whether these Democrats have actually abandoned their office.
Speaker 4 (06:12):
The Constitution says that when a vacancy occurs in a
legislative position, then it is the job of the governor
to call a special election to fill that vacancy. It
doesn't provide an exhaustive list of the conditions under which
a vacancy would occur, and the legal theory underlying these
actions is that a court is entitled to identify a
(06:34):
vacancy under this kind of circumstance.
Speaker 1 (06:37):
This circumstance being essentially leaving the state in an effort
to make it impossible for the Texas House to do
its job to function. Essentially, I mean this is a.
Speaker 3 (06:52):
Thing, though.
Speaker 2 (06:53):
I mean Texas lawmakers have been breaking quorum as we
call it since like the eighteen seventies. Our founding fathers
for reasons that we don't know, but our founding fathers
set our quorum very high. They gave us a two
thirds quorum. We're one of only four states that has
a two thirds quorum.
Speaker 3 (07:09):
It is notable.
Speaker 2 (07:10):
Those are the only states that really have ever had
quorum breaks. Most states fifty percent, fine, whatever, here two thirds.
The legal experts or the historians I've talked to you
feel like this reflects early Texas's wanting to make government difficult,
small and difficult to enact.
Speaker 3 (07:28):
We don't know that for sure, though.
Speaker 1 (07:29):
Okay, okay, so I mean, David, help us analyze these
legal arguments that have What do you think about the
case that Abbott and Paxton are making about you know
that what they have done actually constitutes, you know, abandonment
of office.
Speaker 4 (07:47):
I think the case offered by both the governor and
the Attorney General is very weak. They really haven't pointed
to any precedent that supports their position. In fact, the
precedents they cite tend to support or the alternative view
that these legislators have not abandoned their positions because they
intend to hold and exercise their positions. They're doing what
(08:08):
they're doing in order to advance their legislative goals. The
precedents that both the governor and the Attorney General cited
suggests that a court could identify an instance of abandonment
when a legislative office holder is no longer trying to
exercise their office. Say they've gone off on a cruise
for a year and they're not even engaged in legislative business.
(08:30):
That's a far cry from the kind of situation we're
looking at here.
Speaker 1 (08:34):
So I mean, basically, what you're saying, what I think
the Democrats are maybe arguing in as well, is that
leaving the state to break quorum is not an abandonment office.
It's actually using it's a constitutionally created function tool lever
that they have to execute kind of their political or
(08:56):
legislative goals.
Speaker 3 (08:58):
That's certainly what the Democrats are saying.
Speaker 2 (08:59):
I mean, they're saying, like, the constituents we represent in
our blue districts do not want these new maps. We
have no way to in like sort of represent them
and block these maps by staying here. So to best
represent them, we must leave the state and stop the
maps from being passed.
Speaker 3 (09:16):
You know.
Speaker 2 (09:18):
And we might get into this, but the Texas Supreme
Court ruled in twenty twenty one that the Texas Constitution
enables quorum breaking, that was their term. It also though,
enables quorum forcing, which is like and they say that
is something the chambers can do. They can set finds,
they can set censure, they can even vote to expel
a member over breaking quorum. You would need quorum and
(09:42):
a two thirds vote to expel a member, So you know,
that's a tricky thing for them to sort of get
around now that this basically essentially more or less the
same Supreme Court said the constitution enables quorum breaking.
Speaker 1 (09:57):
Okay, so you what you are citing here is a
an opinion by Justice Jimmy Blacklock, who now Chief Justice,
who is now Chief Justice. Exactly. This is dating back
to twenty twenty one, right when lawmakers fled the state
to stop a voting a bill that would impose new
voting restrictions. The House issued warrants to bring them back
(10:21):
to the capitol, which is, you know, as you mentioned,
allowed in the constitution, and Blacklock wrote, I'm going to
just read the quote here. While it it being the Constitution,
I believe does enable quorum breaking by a minority faction.
It also enables the remaining members to compel the attendance
of absent members. The two thirds quorum rule protects against
(10:43):
legislative action by a smaller fraction of the body. And so.
Speaker 3 (10:50):
There we go.
Speaker 1 (10:50):
It's done. Right. They're going to reject this is that
the well Governor.
Speaker 2 (10:54):
Abbott has argued in his filing, And David, I'm curious
your thoughts on this argument, because I found it sort
of a compelling framing to say, well, the highway enables
you to drive one hundred and twenty miles per hour.
If you keep doing that, eventually we're going to take
away your license.
Speaker 3 (11:10):
I mean, what do you sort.
Speaker 2 (11:11):
Of make of that argument that enabled is not doing
that much as much work as people think it is
in that ruling.
Speaker 4 (11:17):
I think the important thing to understand here is that
there would be a very fundamental separation of powers problem
with a judicial officer coming in and trying to impose
rules on the House. The Constitution assigns to the House
the power to make its own rules of procedure. That
implies that there are pretty strong limits on the ability
(11:38):
of either the executive or the judiciary to come in
and try to supersede those choices by the House. In fact,
the Texas Constitution has a stronger separation of powers than
the Federal Constitution has a separation of powers clause that
makes explicit that where the Texas Constitution assigns to one
branch of government of power, it prohibits the other branches
(11:58):
from intruding on the exercise that power. And that's exactly
what the governor and the Attorney General in my view
are asking a court to do here.
Speaker 1 (12:05):
Well, that's interesting because we've seen this come up recently
in other cases. Right, the Ken Paxton remains very upset
with some members of the Court of Criminal Appeals, right
because they banned they prevented him from prosecuting voter fraud cases.
If I'm not mistaken, claiming that same separation of powers. Essentially,
you know, the AG's office is part of the executive brand.
Speaker 2 (12:30):
They can't I mean, well, and in that case they
have to be invited in by the district attorney. That's
like not a power given to them exactly, right, which
we should say in that case. You know, Attorney General
Ken Paxton was very upset with that ruling. He worked
to unseat three incumbents on that court. Two more have
said that they are not going to run for reelection,
and there's already been some rhetoric around, you know, I
(12:52):
mean from one person particular, Michael Quinn Sullivan has said,
like the eyes of Texas Republican primary voters are on
the Texasupreme Court with this case. Now, like all they
have to do is look at what happened with the
Court of Criminal Appeals. Like there is a lot of
pressure on the Supreme Court right now, I would say,
like frankly, like, I think Governor Abbott and Attorney General
Paksna put them in a bit of a buying tier.
Speaker 1 (13:13):
Right, right, Because the other difference between you know, the
federal Constitution, the federal courts, and the state courts is
that the state courts are elected, right, And so you know,
in this state we have nine Republican members who face,
you know, the most important election that they will be
(13:34):
involved when will be in primaries including if I'm not mistaken,
eleanor three next year. Right. I think there are a
lot of people watching this. You know, Jimmy Blacklock again
you mentioned the Chief Justice, he wrote that opinion. He
was also appointed by Governor Abbot, as were many other
members of the Supreme Court. I think there is a
question of, you know, is there going to be intense
(13:56):
pressure electoral or otherwise? Two go along with what Abbot
and Paston are going for. David, I wonder what you
think about that fear by many conservatives. I mean, do
you think that's a reasonable concern that some Democrats have?
Speaker 4 (14:15):
Well, I guess I can't really answer that question as
a legal expert. I mean, I will say that, I
think there are some strong arguments for having a popularly
accountable judiciary. It's a good thing that ultimately public officials
are accountable to the people. And at the end of
the day, the question is going to be what will
(14:35):
the people put up with in their public officials?
Speaker 2 (14:40):
I mean, and where we stand now, the Texas Supreme
Court has issued this extended deadline. So Governor Abbott asked so,
and just for context here right, Governor Abbott a former
member of the Texas Supreme Court, a former attorney general.
He has appointed six of these nine justices, many of
whom have gone, all of whom now have gone, you know,
many of whom have gone on to win reelection on
(15:02):
their own. Two of them are his former general counsels,
including Chief Justice Blacklock. He, some legal experts said, somewhat presumptively,
asked the Supreme Court to rule on this what he
called a constitutional crisis case in forty eight hours. They
did not take him up on that, and just last
night they issued this briefing schedule that will put us
(15:24):
basically past Labor Day before we get a decision on this,
which buying themselves some time.
Speaker 1 (15:29):
It seems like, yeah, what do you make of that, David,
I mean, I think what that does is it it
brings us to a situation where we're probably going to
go past the special session period before we get a
ruling on this. I mean, obviously Abbott can and will
call another special session if this one ends, and in fact,
(15:52):
I think Dan Patrick came out today and said that
he might, and the session arose.
Speaker 2 (15:56):
Yeah, they said that they would adjourn Friday if they
don't have quorum and immediately call immediately start the thirty.
Speaker 1 (16:00):
Day clock over exactly. But is there anything to read
into this kind of rejection of Abbott's request to rule
very quickly on this and hear briefings and you know,
kind of let this play out.
Speaker 4 (16:15):
I don't think it was at all surprising, particularly in
a situation where the Attorney General was suggesting that there
was a standing problem with the governor's filing. So there
are a lot of procedural issues, complicated procedural issues that
the Court will want to look into before it rules
on this question. The standing issue is not the only one.
There's actually a very fundamental jurisdictional issue here. The jurisdictional
(16:40):
provision that both the governor and the Attorney General have
suggested as the basis for the Supreme Court's ability to
rule on this question arguably does not extend to making
a determination about a legislative vacancy. In the language of
that jurisdictional statute says that they can rule on this
kind of of action with respect to an officer of
(17:03):
state government, But the Supreme Court has previously interpreted that
language to refer to a narrower class of officials that
doesn't include legislators.
Speaker 1 (17:13):
And David, is what you're talking about here, this idea
that it seems as though the rules for how you
go about getting this removal is you go to a
district court first, presumably one that is within the jurisdiction.
I also believe it doesn't allow for it doesn't explicitly
allow for the governor to make this filing. Is that
(17:35):
sort of what you're talking about here.
Speaker 4 (17:36):
So there are two separate issues there, one about the
standing of the governor specifically. But you're absolutely right, and
I think the proper jurisdictional course would have been to
go to a district court first rather than trying to
have an expedite at proceeding before the Supreme Court.
Speaker 2 (17:51):
I mean this has been messy, right, I mean you
sort of mentioned this right with Attorney General Paxton has
raised standing issues about Governor Abbe being able to bring this.
I think there's been sort of a degree of in
fighting in the courts that creates a lot of this
uncertainty and sort of crass. I think an opening for
the courts to say, like we need a minute.
Speaker 1 (18:09):
Yeah, let's let's actually step back and just walk through
that process. Because I think it's, like you said, it's
MESSI it's also kind of fascinating and interesting. There's a
lot of dynamics here. So on August third, Democrats leave
the state. Greg Abbott, I think that same day essentially
threatens to remove them, saying that you know, we will
(18:30):
take action to this. I think you know, I will
speak for myself here. When I read that, I read
that as not necessarily meaning that he would file it,
but that you know, someone in Texas would file it.
But regardless that that's what happens. A day later, the
House issues arrest warrants for the members, you know, just
quickly right standard fair. It means you can arrest them
and essentially bring them back to the House. It doesn't
(18:51):
mean you're like state line going to charge them, yeah
and yeah, and you can only arrest people within state lines.
And then Paxton on August fifth, announces that he'll seek
orders to remove Democrats from their seats if they don't
return by that Friday. Hours later, Governor Abbott files to
specifically remove Gene Wu, the House Democratic Leader, which then
(19:15):
leads maybe like an hour later for Paxton to write
a letter to the Supreme Court essentially saying, you know,
Governor Abbott means well, here, but you know, we all
know he can't actually do this. Where it kind of
looks like these two you know, high profile statewide elected
officials are sort of fighting each other over who gets
the right to throw out these Democrats. Meanwhile, our you know,
(19:39):
senior state Senator John Cornyan, who faces a primary challenge
from Attorney General Kin Paxton, is essentially just lobbing grenades
from Washington d C at Ken Paxton essentially saying, you know,
he's not doing enough. He's on a European vacation, like
Greg Abbott is having to step in and do the
work for the Attorney g General without him, And so
(20:01):
it's this fascinating and maybe I will say hilarious, you know,
kind of like fight within the political fight over who
can do this and what kind of I guess political
benefit they can get from being able to do it right.
Speaker 2 (20:16):
And Paxton originally said, which I think legal experts sort
of agree with. He said, like, we would have to
file each of the He was like, this is going
to be a challenge. We're gonna have to file in
everyone's individual jurisdiction. You know, this would have to be
you know, we're going to be in blue counties, DA, DA, DA.
And now he came in, like you said, after these
you know, bombs are being thrown at him and files
(20:37):
in the Supreme Court and says like, oh no, no, no, no,
I can file in the Supreme Court directly. Actually, Governor Abbot,
we should say, is arguing he can. The one part
of state statute says a quote warrant o proceeding can
only be brought by the county or district attorney or
the Attorney General and district court. Governor Abbott says, I'm
citing a different part of state statute. Now, you know,
Atturne General Paxton is saying, I'm citing that part of statute.
(21:00):
But I think we can go directly to the Texas
Supreme Court. So you can sort of understand the Texasupreme
Court saying like we're gonna need a minute on all
of this to your point, David, just like the standing
and the jurisdictional issues and the even before we get
to the unprecedented question of is this vacating an office,
Like they've created a little bit of a and they
(21:20):
have now consolidated those cases together and have basically said
and this morning, Attorney or late last night, Attorney General
Ken Paxon said he looks forward to fighting alongside Governor
Abbott on this.
Speaker 3 (21:30):
So we're all friends again. Yeah.
Speaker 1 (21:33):
So I guess, David, what can you tell us about
like how what we should expect and how we should
watch this in the coming days, weeks and months. I mean,
how does this do we know? Is there enough President
President to know how this plays out in the coming weeks.
Speaker 4 (21:53):
Well, as I've said, I think there's absolutely no precedent
supporting the position of the plaintiffs here. I think it
would be really shocking if the Supreme Court were to
find any merit in these claims that in my view
seemed to be completely without merit, even after you address
(22:16):
the procedural problems. As you said a few minutes ago,
the Supreme Court said just four years ago that legislators
are entitled to engage in quorum breaking. It would be
pretty shocking for them to execute a complete about face
just four years later and to say, not only is
that something they're not permitted to do, it is something
(22:39):
that means they have forfeited their offices. I mean, that
seems so radical and surprising in view of the precedents
and the very clear separation of powers issues here.
Speaker 1 (22:55):
Let me just play like a little bit of like
try to take the other side of this argument right now.
I mean, you know, I think we should eventually at
some point talk about kind of the democratic issues of
democracy in all of this. But it is not the
most democratic thing for a small minority of you know,
(23:19):
the clear minority of a of a legislative body to
be able to halt, not to be able to halt
the entire work and functioning of the legislature in order
to stop you know, one particular bill that they don't like.
Right you know, theoretically, these lawmakers could just make the
(23:40):
decision to never come back, and then we just don't
have a legislature anymore, Like I mean, should should there
not be some kind of mechanism within the law to allow,
you know, a constitutionally created branch of government to function,
you know, despite you know, and overcome a minority faction
(24:06):
of that, you know, trying to prevent them from functioning period.
Speaker 2 (24:10):
Right, I mean that's Governor Abbott's argument, And like, I mean,
you can say some of this is sort of a
little bit of sort of taking this to it's worst extreme.
But he's saying, like we could bankrupt the state, Like
they could just stay away, they could never pass a budget,
they could never return they have to return to probably
run for their seats again.
Speaker 3 (24:26):
But like, yeah, you can do that over zoom.
Speaker 2 (24:27):
These days, Like we could just shut down the Texas
Texas forever.
Speaker 1 (24:31):
Yeah.
Speaker 2 (24:32):
I do think and frankly, I think a lot of this,
and I've heard this from some Republican lawmakers is the
fact that they also broke korum in twenty twenty one.
There's this sense that this is now like a tool
that's going to be used more frequently against anything they
don't like. Of course, Democrats would say, like this is
such a you know, once in a lifetime thing I
would say that, like the remedy for that, the typical
(24:54):
remedy for that right is like you can't just go
to the courts and say, like we think this is
insane that you can do this is like change the law.
Speaker 3 (25:02):
Right. The House has done some of that, They've created
increased House rules, But how can you change the law.
It's a constitutional amendment. You need a two thirds vote.
Speaker 2 (25:09):
I mean, this is the like I just talked yesterday
to represent Cody Vasuit, who's chairing the redistricting committee. He
since twenty twenty one has filed several bills to reduce
quorum to fifty percent, like almost every other state. The
problem is it's a constitutional amendment. You need a two
thirds majority to get that done.
Speaker 3 (25:27):
So they are in a little bit of a bind here.
Speaker 2 (25:31):
I will say that part of this is that if
they do get those vacancies declared quorum reduces, I bet
there just would go ahead and while while they've got
this reduced quorum, pass a bill that says quorums fifty percent.
So like there's a lot that could suddenly happen if
they were to take that sort of extraordinary step.
Speaker 1 (25:47):
David, what do you think about that? That question.
Speaker 4 (25:50):
It's it's a really great question, and it really goes
to the merits of the constitutional rule. As you observed earlier,
it's usual rule by the standards of state constitutions, setting
a two thirds quorum requirement for the House, and arguably
not a great rule, although the history suggests that it
did tend to promote more collegiality and cooperation in the
(26:13):
Texas legislature than in many state legislatures. But I do
agree with the observation that majority rule is a very
central principle of democracy, and we should ask questions about
rules that empower a minority to obstruct majority rule. But
there's a process for reforming those institutions. And in a
(26:34):
society with the rule of law, you need to follow
the rules to change the rules. When you don't do that,
you are really not complying with the rule of law,
and that's really disturbing.
Speaker 1 (26:47):
Okay, own our game out for me. What happens if
these thirteen members are tossed from office?
Speaker 3 (26:56):
What next?
Speaker 2 (26:58):
Well, I get to use a pre rite that I
that's currently burning a hole in my pocket. I mean,
I think if those thirteen are removed, you know, it
technically opens the door for any Democrat who does not
return to be removed. It effectively ends quorum breaking as
a strategy for a demo for any minority party in Texas.
(27:20):
I mean, one question I do have that's like a
legal question, is like if I mean, they're at ninety
five to ninety seven, like they're pretty close to quorum.
If they make quorum, can the Texasupreme Courts throw this
out as moot? Like can they we resolve this constitutional
crisis that way?
Speaker 4 (27:38):
I don't know. I mean, it seems like if there
are it seems like the theory in this case is
that legislators who are not showing up are in so
doing producing a vacancy. And it doesn't seem like that
goes away just because other legislators have shown up. I mean,
it seems pretty clear to me that not show up
(28:00):
for the purpose of denying the House of quorum does
not constitute an abandonment of office. But I'm not sure
that it would be mooted just because other legislators show.
Speaker 1 (28:10):
Up, although you know, history suggests that once they have
a quorum, the other members show up too, right, and
that right that it would be harder to make the
case that they've abandoned their office, if they have shown
back up to the legislature to do the work.
Speaker 2 (28:26):
Right, like I think probably, if they make quorum, the
people who are facing expulsion from office might make haste
in return. Yeah. Also, though they might want a ruling
on this, they might want to force the courts to
So I think there's so much unresolved that you know,
we're not going to get an answer for several weeks.
We're not going to get maps for several weeks, it seems,
unless by some miracle they make quorum on Friday. So
(28:47):
you know, yeah, this is going to be much more
extended than we thought.
Speaker 1 (28:51):
I think, okay, but I want to I want to
lay out you know, there's there's the legal precedent in
what happens on there, but there's also just the like
practicality of getting this these new maps passed. Right, So
if correct me if I'm wrong here, But if the
lawmakers are thrown out the quorum, the threshold to meet
quorum is two thirds of the members of the body,
(29:14):
not two thirds of the one hundred and fifty constitutionally
created House seats. So Democrats would I mean Republicans would
be able to meet quorum with a smaller with a
number of Democrats kicked out, which would mean they could
come back together, pass out these.
Speaker 3 (29:28):
Maps, and you know, maybe the agenda.
Speaker 1 (29:30):
Maybe we go through this whole process again with the Senate.
We would have to see, but essentially, yeah, past the
rest of the agenda that they have through, then Abbott
would be expected to call a special election. Those members
who were kicked out could run again and essentially win
their seats back. So we're essentially like there is a
world where we sort of returned to the status quo,
(29:53):
except the bills that are up in the special session
have passed during that brief period of time where we
have fewer or maybe even no Democrats in the Texas House.
Speaker 2 (30:05):
Right, we come back in twenty twenty seven with the
same people people essentially.
Speaker 1 (30:09):
Exactly, except they're all a little bit more mad at
each other than they were before.
Speaker 3 (30:13):
I think, arguably a lot more mad. I mean, I
do think like.
Speaker 2 (30:15):
This is like a real this whole episode, whatever happens,
is such a blow to whatever shreds of bipartisanship were left.
Speaker 1 (30:23):
Yeah. Yeah, well, and it's not just bipartisanship bipartisanship to
it it seems like there are all these little things
that are happening where the ability of the people of
Texas to choose their elected representation are being limited. Right, So,
I mean the maps themselves are an example of this. Right,
(30:46):
they are taking this step, you know, outside the norm.
It's happened one time before, but to essentially draw seats
that will determine who will win the seats in advance.
You know, this, you know is nothing completely new, but
it's a more extreme step. In order to do that,
you have, you know, this idea of removing democratically elected
(31:08):
democrats low capital D democratically elected capital D democrats from
office for doing something that you know, I suspect that
the people that put them in office support. Right, Separate
from that, completely unrelated to this whole fight, we have
this parallel process that's going on right now in the
(31:29):
Republican Party where essentially the State Republican Executive Committee, a
small committee of you know, elected but you know, very
activist wing people of the party are you know, pursuing
the power to censure members of their own party. In
the In the Texas House, Republican members who did not
(31:52):
align with some of the priorities of the party with
the goal of banning them from being able to be
on the primary ballot in twenty twenty six, you know,
essentially then again, a small committee of people deciding to
disqualify people who have been elected by the people in
their district to represent them. It just it just seems
(32:13):
to me like there are a lot of aspects of
democracy that are not looking real great right now.
Speaker 3 (32:21):
Yeah, I mean, I think a lot of this is.
Speaker 2 (32:25):
Like sort of walking us towards very very shaky ground.
And like, you know, to have a governor who's a
former Supreme Court justice, a former Attorney general by all
of respects, like a very smart lawyer, you know, even
just like tempt the court with this legal argument. It's
it's a new I don't know, it's a new chapter
(32:45):
we're in. I mean, David, like when you look at
this in terms of like the where we're gonna where
like our democracy is going to be when this all resolves, Like,
what's your diagnosis.
Speaker 4 (32:58):
I would say, it's it's pretty bleak. I Mean, we've
talked a lot about the violations of the state constitution
that would be created if courts were to accept these
theories that the governor and the Attorney General are advancing,
But I think it's worth taking a step back and
focusing on the objective that this is all directed to war.
We're talking here about a very unusual mid decade redistricting
(33:20):
that pretty clearly is only happening in order to gerrymander
the House map. Mid decade redistricting is historically really have
not happened when the same party drew the initial map.
That's what's really unusual here. And on top of that,
(33:41):
they did so with a stated objective of reducing the
representation of communities of color, likely making this redistricting plan
illegal under federal law as a racial gerrymander. Before you
even get to the potential violations of the Voting Rights Act. Now,
it has to be said that the US Supreme Court
has contribut a lot to the perilous state that American
(34:03):
democracy is in. I would really lay a lot of
the blame at the feet of the US Supreme Court
fundamentally for blessing partisan gerrymandering in twenty nineteen, saying that
state legislatures are permitted to engage in any degree of
partisan jerrymandering. That really is what opened the floodgates as
we're now seeing. On top of that, though, the Supreme
(34:25):
Court indicated just last week that it is likely to
further constrict the protections of the Voting Rights Act, which
was the one real protection in federal law restraining partisan gerrymandering.
If the Supreme Court were to do what a lot
of experts expect it will do in this Louisiana case
that has just been scheduled for reargument in mid October,
(34:48):
that would dismantle the one really substantial remaining check on
the ability of in particular Southern legislatures to thoroughly gerrymander
maps to deny uh, members of minority groups any political representation.
Speaker 1 (35:05):
Yeah, I mean, and we also just started this scenario
now where it really just feels like maximum political warfare, right,
and and how do we get to a point where
that's no longer the case?
Speaker 3 (35:17):
You know?
Speaker 1 (35:17):
Uh, before we right before we started recording this, Ken
Paxton put out a press release where he's saying, he's,
you know, asking a local district judge to jail back
to O'Rourke for uh, for for what, defying a court
order to stop fundraising for the Democrats as a part
of this quorum break. He quoted a quote from O'Rourke
(35:41):
at a Fort Worth rally on Saturday, where where O'Rourke said,
you know, there are no refs in this game. Fuck
the rules, right, and.
Speaker 3 (35:50):
Well we're getting kicked off Apple podcast.
Speaker 1 (35:52):
That's fine, people, people cut Joe Rogan is like the
most popular. Yeah, But I mean, you know, one of
the things you have heard from Democrats in response to
this redistricting plan is like, it's time to stop playing nice.
It's you know, it's time to We're gonna Rea. We're
gonna do this what the Republicans are doing in Texas,
we're gonna do in California, and we're gonna do in
(36:13):
New York. And it seems like each side keeps just
wanting to kind of up the game out out of
what they view as an existential danger created by the
other side in a way that it just is very
hard for me to figure out what the sort of
release valve is for all this pressure.
Speaker 2 (36:32):
And I think, I mean, we have a story today
in which I accurately describe Bill Clements as the first
Republican governor of Texas, in which we talk about like,
how in you know, I think this is true? In
I think blue states are, like you said, are pushing
this like maximum politics idea.
Speaker 3 (36:47):
Texas is as well.
Speaker 2 (36:48):
And Texas just has so much Republican power, right, And
every branch of government in Texas is so securely dominated
by the furthest reaches of the party that it's like,
you know, I think it's part of why it feels
so extreme in one direction here.
Speaker 3 (37:05):
And we hear this from Republicans a lot.
Speaker 2 (37:06):
Well, you know, Illinois does it too, and New York
does it too, and like, like you said, absolutely both
sides have pushed each other to the edge, but we
just have such complete dominance of one party here.
Speaker 1 (37:16):
Yeah, But I mean it is worth thinking about how
I think I made this point last week too, But
it's worth making again that the legislative session started this
year with a robust debate about shared governance and the
power and allowing Democrats to be a part of the process, right.
And you know, the person who won the House Speakers
(37:40):
race was won that race with the support of Democrats.
And now here we are eight months later, and those
same Democrats are being you know, the attempts are being
made to forcefully remove them from office.
Speaker 2 (37:56):
Rip those vice chairmanships that they fought so hard for.
I mean, I mean, I just do think that like
this when I say, like this is sort of the
end of any bipartisanship, Like like you said, eight months ago,
we were saying, you know, oh, you know, should they
should Democrats be chairs of committees in the House or
just vice chairs of committees? And where are we gonna
you know, And now it's like they're gonna be stripped
(38:16):
of their almost certainly right, there's all of talk about
they're gonna be stripe stripped of their vice chairmanships that era.
I think we will look back quaintly on that as
like you know, the time when Democrats held chairs in
the Texas Legislature. I mean, I think the House is
gonna look a lot more like the Senate in terms
of just like mono party dominance. And you know a
(38:37):
lot of Republicans say, like that's overdue. We've been too
too cautious.
Speaker 1 (38:40):
Yeah, yeah, absolutely, I mean, David, do you let's let's
talk about your democratic and constitutional theory part of your uh,
your areas of research. Do you do you see do
you agree with our assessment? Do you see any opportunity
here to to cool the temperature? In any way.
Speaker 4 (39:03):
Well, I think one of the tragedies here is that
there is going to be a cycle of tit for
tat where states with democratic legislatures are understandably going to
feel that they have to respond. If you know your
game theory, you know that you're just encouraging more bad
behavior on the other side if you don't have a
(39:23):
proportional response. So I think, you know, whereas historically, blue
states really had a lot more interest in creating independent
redistricting commissions and developing other state law constraints on partisan jerrymandering.
For example, California has an independent commission. New York has
(39:44):
state constitutional constraints on partisan jerrymandering. I think there's going
to be a lot of pressure for backsliding in those
blue states on these issues, which you know, might be
necessary from a game theory perspective in the situation that
we're in, but is a sad thing for our democracy
in the aggregate when progress toward improving the districting process
(40:10):
is going to be rolled back as a result of
these gerrymanders that are taking place.
Speaker 3 (40:17):
Yeah, nobody's coming out of this un scathes.
Speaker 1 (40:19):
Yeah, exactly. Well, something tells me we'll be talking about
this next week. Yeah too, but I think this is
a good place to stop right now. Thank you David
for joining us in providing your insight. Thank you Eleanor,
and thank you to our producers Robin Chris. We will
talk to y'all next week.
Hello, and welcome to the Texas Tribune trip cast for Tuesday,
August twelfth. I am Matthew Watkins, editor in chief of
the Tribune, and I am joined by, as usual, our
law and politics reporter Eleanor Clebanoff. Hello, Eleanor, Hello Matthew.
Speaker 2 (00:33):
How are you.
Speaker 1 (00:34):
I'm doing well. We were just talking about how you've
been doing the yeomen's work of googling synonyms for unprecedented Yes.
Speaker 2 (00:46):
Very March twenty twenty vibes, but more on the Texas
legal politics side.
Speaker 1 (00:51):
I feel like this is just I feel like the
common debate among reporters right now is like, what's another
word for flea? Flee the state. I feel like people
are really you know, going DeCamp, you know, absconde, Yeah,
really stretching the limits of our our language here to find.
Speaker 2 (01:10):
We've gotten some negative feedback on flea people who are
sort of supportive of the Democrats and feel like flea implies,
you know, uh, doing so without perhaps without cause or
without you know, sort of more of a cowardly move,
which I think we've certainly heard Republicans sort of framing
it that way. I kind of think flee is, you know,
you can flee in defense of democracy.
Speaker 1 (01:32):
Right, you can flee, you know, a nuclear bomb.
Speaker 2 (01:36):
Exactly, say that people who flee nuclear bombs are towers.
Speaker 1 (01:41):
I don't think there's a value judgment here.
Speaker 3 (01:43):
That's what we say.
Speaker 2 (01:44):
Yeah, so yeah, we uh abscond on the lamb.
Speaker 3 (01:50):
That one feels more criminal. Yeah yeah, yeah.
Speaker 1 (01:53):
So we're struggling eleanor dot clipping off at texts Tribune
dot org. If anyone has any language recommendations for us.
Speaker 3 (02:00):
My email has been you don't need me.
Speaker 1 (02:06):
I apologize.
Speaker 2 (02:07):
I will say one thing, and I will I want
to publicly may a cool book for this. I made
a an error in a story today and people emailed
me so aggressively. But to be fair, it was warranted.
I engaged in bill clements erasure. I misstated what year
Texas elected its first Republican governor. People emailed me, so
(02:27):
I rate on behalf of bill clements, and that's fair.
Speaker 3 (02:30):
I did get it.
Speaker 2 (02:31):
I was an air I introduced an error in there,
and uh, it's amazing how intense people were about that.
Speaker 1 (02:37):
They always say, you know, you don't mess with the
bill clements hive. That's exactly. Yeah, the rule number one
of Texas journalism. Yeah, exactly, exactly, exactly right. All right, Well,
this week, if you haven't picked up up and picked
up on it already, we are going to continue talking
about the quorum break and we're going to take a
(02:57):
little visit to law school, which I think is probably
exciting to you. Yeah, you know, catching people up. I'm
sure most people listening to the show already know. But
Texas Democrats in the Texas House remain outside of the
state they're fleeing. Has continued, if you will, but the
fight has shifted maybe a little bit more to the courtroom.
(03:21):
State leaders since we last spoke, including Greg Abbott and
Ken Paxson. We'll get into that in a little bit,
have filed lawsuits seeking to remove thirteen Democrats in the
Texas House, including House Democratic Leader Jean wu from office,
basically claiming that they have abandoned their duties as elected officials.
It is an unprecedented step in which the Texas Supreme
(03:44):
Court will likely ultimately decide the fate of those lawmakers
in the coming days or maybe weeks. Joining us to
help us understand this is David Frumkin, a law professor
at the University of Houston who studies, administrative law, election law,
and democratic and constitutional theory, which sounds like a pretty
good CV for the conversation. We're about to have the
guy we needed exactly. So David, thank you for joining us.
Speaker 4 (04:07):
Great to be with you.
Speaker 1 (04:08):
All Right, So I'm going to start with you, Eleanor,
and I'm going to ask you to explain what these
legal filings are before we go to David, to help
us understand whether there's anything to these legal filings. So
just sum up with for us as quickly as you
can what legal actions Abbot and Paxton have taken against
(04:31):
these Democrats.
Speaker 2 (04:32):
Yeah, and I will say this is like one of
the best parts definitively of being a journalist is that,
like you can wake up on a Monday a week
ago and have never heard the phrase quote warrntoe in
your life, and by the end of the week, I'm
sitting here being like everybody knows, like to file an
information on a quote warrant to proceeding, you got to
follow these different steps thanks to legal experts like Professor
(04:52):
Frumpkin who educate us all on the fly.
Speaker 3 (04:55):
But that's basically what this is.
Speaker 2 (04:56):
They have asked first Abbot, first Governor abbot On has
asked the Texasupreme Court to remove House Democratic Caucus Chair
Gene Wu through this quot warrn toe preceding Attorney General
packs and followed up with his own suit on seeking
to remove thirteen members through the same mechanism, one Wu
and twelve others.
Speaker 3 (05:17):
And uh, yeah, that's it's.
Speaker 2 (05:19):
An unprecedented filing to be used for a quorum break.
It is basically if a public official. It can also
be using corporate settings, but putting that aside for a second,
if a public official has vacated their office or abandoned
their office, it is how you get them.
Speaker 3 (05:36):
Formally removed from office.
Speaker 2 (05:39):
There are there's like rare precedent and how this has
been used in you know these sort of in general,
like how do you get somebody out of office?
Speaker 3 (05:48):
It has never been used, you know, quorm break setting.
Speaker 1 (05:50):
Okay, So David, I want to ask you first with
a very simple question. I mean, is there anything laid
out in the Constitution or elsewhere that sets sort of
defined what kind of abandoning office? Abandoning your office means?
Is that like what do we have to go with
to evaluate whether these Democrats have actually abandoned their office.
Speaker 4 (06:12):
The Constitution says that when a vacancy occurs in a
legislative position, then it is the job of the governor
to call a special election to fill that vacancy. It
doesn't provide an exhaustive list of the conditions under which
a vacancy would occur, and the legal theory underlying these
actions is that a court is entitled to identify a
(06:34):
vacancy under this kind of circumstance.
Speaker 1 (06:37):
This circumstance being essentially leaving the state in an effort
to make it impossible for the Texas House to do
its job to function. Essentially, I mean this is a.
Speaker 3 (06:52):
Thing, though.
Speaker 2 (06:53):
I mean Texas lawmakers have been breaking quorum as we
call it since like the eighteen seventies. Our founding fathers
for reasons that we don't know, but our founding fathers
set our quorum very high. They gave us a two
thirds quorum. We're one of only four states that has
a two thirds quorum.
Speaker 3 (07:09):
It is notable.
Speaker 2 (07:10):
Those are the only states that really have ever had
quorum breaks. Most states fifty percent, fine, whatever, here two thirds.
The legal experts or the historians I've talked to you
feel like this reflects early Texas's wanting to make government difficult,
small and difficult to enact.
Speaker 3 (07:28):
We don't know that for sure, though.
Speaker 1 (07:29):
Okay, okay, so I mean, David, help us analyze these
legal arguments that have What do you think about the
case that Abbott and Paxton are making about you know
that what they have done actually constitutes, you know, abandonment
of office.
Speaker 4 (07:47):
I think the case offered by both the governor and
the Attorney General is very weak. They really haven't pointed
to any precedent that supports their position. In fact, the
precedents they cite tend to support or the alternative view
that these legislators have not abandoned their positions because they
intend to hold and exercise their positions. They're doing what
(08:08):
they're doing in order to advance their legislative goals. The
precedents that both the governor and the Attorney General cited
suggests that a court could identify an instance of abandonment
when a legislative office holder is no longer trying to
exercise their office. Say they've gone off on a cruise
for a year and they're not even engaged in legislative business.
(08:30):
That's a far cry from the kind of situation we're
looking at here.
Speaker 1 (08:34):
So I mean, basically, what you're saying, what I think
the Democrats are maybe arguing in as well, is that
leaving the state to break quorum is not an abandonment office.
It's actually using it's a constitutionally created function tool lever
that they have to execute kind of their political or
(08:56):
legislative goals.
Speaker 3 (08:58):
That's certainly what the Democrats are saying.
Speaker 2 (08:59):
I mean, they're saying, like, the constituents we represent in
our blue districts do not want these new maps. We
have no way to in like sort of represent them
and block these maps by staying here. So to best
represent them, we must leave the state and stop the
maps from being passed.
Speaker 3 (09:16):
You know.
Speaker 2 (09:18):
And we might get into this, but the Texas Supreme
Court ruled in twenty twenty one that the Texas Constitution
enables quorum breaking, that was their term. It also though,
enables quorum forcing, which is like and they say that
is something the chambers can do. They can set finds,
they can set censure, they can even vote to expel
a member over breaking quorum. You would need quorum and
(09:42):
a two thirds vote to expel a member, So you know,
that's a tricky thing for them to sort of get
around now that this basically essentially more or less the
same Supreme Court said the constitution enables quorum breaking.
Speaker 1 (09:57):
Okay, so you what you are citing here is a
an opinion by Justice Jimmy Blacklock, who now Chief Justice,
who is now Chief Justice. Exactly. This is dating back
to twenty twenty one, right when lawmakers fled the state
to stop a voting a bill that would impose new
voting restrictions. The House issued warrants to bring them back
(10:21):
to the capitol, which is, you know, as you mentioned,
allowed in the constitution, and Blacklock wrote, I'm going to
just read the quote here. While it it being the Constitution,
I believe does enable quorum breaking by a minority faction.
It also enables the remaining members to compel the attendance
of absent members. The two thirds quorum rule protects against
(10:43):
legislative action by a smaller fraction of the body. And so.
Speaker 3 (10:50):
There we go.
Speaker 1 (10:50):
It's done. Right. They're going to reject this is that
the well Governor.
Speaker 2 (10:54):
Abbott has argued in his filing, And David, I'm curious
your thoughts on this argument, because I found it sort
of a compelling framing to say, well, the highway enables
you to drive one hundred and twenty miles per hour.
If you keep doing that, eventually we're going to take
away your license.
Speaker 3 (11:10):
I mean, what do you sort.
Speaker 2 (11:11):
Of make of that argument that enabled is not doing
that much as much work as people think it is
in that ruling.
Speaker 4 (11:17):
I think the important thing to understand here is that
there would be a very fundamental separation of powers problem
with a judicial officer coming in and trying to impose
rules on the House. The Constitution assigns to the House
the power to make its own rules of procedure. That
implies that there are pretty strong limits on the ability
(11:38):
of either the executive or the judiciary to come in
and try to supersede those choices by the House. In fact,
the Texas Constitution has a stronger separation of powers than
the Federal Constitution has a separation of powers clause that
makes explicit that where the Texas Constitution assigns to one
branch of government of power, it prohibits the other branches
(11:58):
from intruding on the exercise that power. And that's exactly
what the governor and the Attorney General in my view
are asking a court to do here.
Speaker 1 (12:05):
Well, that's interesting because we've seen this come up recently
in other cases. Right, the Ken Paxton remains very upset
with some members of the Court of Criminal Appeals, right
because they banned they prevented him from prosecuting voter fraud cases.
If I'm not mistaken, claiming that same separation of powers. Essentially,
you know, the AG's office is part of the executive brand.
Speaker 2 (12:30):
They can't I mean, well, and in that case they
have to be invited in by the district attorney. That's
like not a power given to them exactly, right, which
we should say in that case. You know, Attorney General
Ken Paxton was very upset with that ruling. He worked
to unseat three incumbents on that court. Two more have
said that they are not going to run for reelection,
and there's already been some rhetoric around, you know, I
(12:52):
mean from one person particular, Michael Quinn Sullivan has said,
like the eyes of Texas Republican primary voters are on
the Texasupreme Court with this case. Now, like all they
have to do is look at what happened with the
Court of Criminal Appeals. Like there is a lot of
pressure on the Supreme Court right now, I would say,
like frankly, like, I think Governor Abbott and Attorney General
Paksna put them in a bit of a buying tier.
Speaker 1 (13:13):
Right, right, Because the other difference between you know, the
federal Constitution, the federal courts, and the state courts is
that the state courts are elected, right, And so you know,
in this state we have nine Republican members who face,
you know, the most important election that they will be
(13:34):
involved when will be in primaries including if I'm not mistaken,
eleanor three next year. Right. I think there are a
lot of people watching this. You know, Jimmy Blacklock again
you mentioned the Chief Justice, he wrote that opinion. He
was also appointed by Governor Abbot, as were many other
members of the Supreme Court. I think there is a
question of, you know, is there going to be intense
(13:56):
pressure electoral or otherwise? Two go along with what Abbot
and Paston are going for. David, I wonder what you
think about that fear by many conservatives. I mean, do
you think that's a reasonable concern that some Democrats have?
Speaker 4 (14:15):
Well, I guess I can't really answer that question as
a legal expert. I mean, I will say that, I
think there are some strong arguments for having a popularly
accountable judiciary. It's a good thing that ultimately public officials
are accountable to the people. And at the end of
the day, the question is going to be what will
(14:35):
the people put up with in their public officials?
Speaker 2 (14:40):
I mean, and where we stand now, the Texas Supreme
Court has issued this extended deadline. So Governor Abbott asked so,
and just for context here right, Governor Abbott a former
member of the Texas Supreme Court, a former attorney general.
He has appointed six of these nine justices, many of
whom have gone, all of whom now have gone, you know,
many of whom have gone on to win reelection on
(15:02):
their own. Two of them are his former general counsels,
including Chief Justice Blacklock. He, some legal experts said, somewhat presumptively,
asked the Supreme Court to rule on this what he
called a constitutional crisis case in forty eight hours. They
did not take him up on that, and just last
night they issued this briefing schedule that will put us
(15:24):
basically past Labor Day before we get a decision on this,
which buying themselves some time.
Speaker 1 (15:29):
It seems like, yeah, what do you make of that, David,
I mean, I think what that does is it it
brings us to a situation where we're probably going to
go past the special session period before we get a
ruling on this. I mean, obviously Abbott can and will
call another special session if this one ends, and in fact,
(15:52):
I think Dan Patrick came out today and said that
he might, and the session arose.
Speaker 2 (15:56):
Yeah, they said that they would adjourn Friday if they
don't have quorum and immediately call immediately start the thirty.
Speaker 1 (16:00):
Day clock over exactly. But is there anything to read
into this kind of rejection of Abbott's request to rule
very quickly on this and hear briefings and you know,
kind of let this play out.
Speaker 4 (16:15):
I don't think it was at all surprising, particularly in
a situation where the Attorney General was suggesting that there
was a standing problem with the governor's filing. So there
are a lot of procedural issues, complicated procedural issues that
the Court will want to look into before it rules
on this question. The standing issue is not the only one.
There's actually a very fundamental jurisdictional issue here. The jurisdictional
(16:40):
provision that both the governor and the Attorney General have
suggested as the basis for the Supreme Court's ability to
rule on this question arguably does not extend to making
a determination about a legislative vacancy. In the language of
that jurisdictional statute says that they can rule on this
kind of of action with respect to an officer of
(17:03):
state government, But the Supreme Court has previously interpreted that
language to refer to a narrower class of officials that
doesn't include legislators.
Speaker 1 (17:13):
And David, is what you're talking about here, this idea
that it seems as though the rules for how you
go about getting this removal is you go to a
district court first, presumably one that is within the jurisdiction.
I also believe it doesn't allow for it doesn't explicitly
allow for the governor to make this filing. Is that
(17:35):
sort of what you're talking about here.
Speaker 4 (17:36):
So there are two separate issues there, one about the
standing of the governor specifically. But you're absolutely right, and
I think the proper jurisdictional course would have been to
go to a district court first rather than trying to
have an expedite at proceeding before the Supreme Court.
Speaker 2 (17:51):
I mean this has been messy, right, I mean you
sort of mentioned this right with Attorney General Paxton has
raised standing issues about Governor Abbe being able to bring this.
I think there's been sort of a degree of in
fighting in the courts that creates a lot of this
uncertainty and sort of crass. I think an opening for
the courts to say, like we need a minute.
Speaker 1 (18:09):
Yeah, let's let's actually step back and just walk through
that process. Because I think it's, like you said, it's
MESSI it's also kind of fascinating and interesting. There's a
lot of dynamics here. So on August third, Democrats leave
the state. Greg Abbott, I think that same day essentially
threatens to remove them, saying that you know, we will
(18:30):
take action to this. I think you know, I will
speak for myself here. When I read that, I read
that as not necessarily meaning that he would file it,
but that you know, someone in Texas would file it.
But regardless that that's what happens. A day later, the
House issues arrest warrants for the members, you know, just
quickly right standard fair. It means you can arrest them
and essentially bring them back to the House. It doesn't
(18:51):
mean you're like state line going to charge them, yeah
and yeah, and you can only arrest people within state lines.
And then Paxton on August fifth, announces that he'll seek
orders to remove Democrats from their seats if they don't
return by that Friday. Hours later, Governor Abbott files to
specifically remove Gene Wu, the House Democratic Leader, which then
(19:15):
leads maybe like an hour later for Paxton to write
a letter to the Supreme Court essentially saying, you know,
Governor Abbott means well, here, but you know, we all
know he can't actually do this. Where it kind of
looks like these two you know, high profile statewide elected
officials are sort of fighting each other over who gets
the right to throw out these Democrats. Meanwhile, our you know,
(19:39):
senior state Senator John Cornyan, who faces a primary challenge
from Attorney General Kin Paxton, is essentially just lobbing grenades
from Washington d C at Ken Paxton essentially saying, you know,
he's not doing enough. He's on a European vacation, like
Greg Abbott is having to step in and do the
work for the Attorney g General without him, And so
(20:01):
it's this fascinating and maybe I will say hilarious, you know,
kind of like fight within the political fight over who
can do this and what kind of I guess political
benefit they can get from being able to do it right.
Speaker 2 (20:16):
And Paxton originally said, which I think legal experts sort
of agree with. He said, like, we would have to
file each of the He was like, this is going
to be a challenge. We're gonna have to file in
everyone's individual jurisdiction. You know, this would have to be
you know, we're going to be in blue counties, DA, DA, DA.
And now he came in, like you said, after these
you know, bombs are being thrown at him and files
(20:37):
in the Supreme Court and says like, oh no, no, no, no,
I can file in the Supreme Court directly. Actually, Governor Abbot,
we should say, is arguing he can. The one part
of state statute says a quote warrant o proceeding can
only be brought by the county or district attorney or
the Attorney General and district court. Governor Abbott says, I'm
citing a different part of state statute. Now, you know,
Atturne General Paxton is saying, I'm citing that part of statute.
(21:00):
But I think we can go directly to the Texas
Supreme Court. So you can sort of understand the Texasupreme
Court saying like we're gonna need a minute on all
of this to your point, David, just like the standing
and the jurisdictional issues and the even before we get
to the unprecedented question of is this vacating an office,
Like they've created a little bit of a and they
(21:20):
have now consolidated those cases together and have basically said
and this morning, Attorney or late last night, Attorney General
Ken Paxon said he looks forward to fighting alongside Governor
Abbott on this.
Speaker 3 (21:30):
So we're all friends again. Yeah.
Speaker 1 (21:33):
So I guess, David, what can you tell us about
like how what we should expect and how we should
watch this in the coming days, weeks and months. I mean,
how does this do we know? Is there enough President
President to know how this plays out in the coming weeks.
Speaker 4 (21:53):
Well, as I've said, I think there's absolutely no precedent
supporting the position of the plaintiffs here. I think it
would be really shocking if the Supreme Court were to
find any merit in these claims that in my view
seemed to be completely without merit, even after you address
(22:16):
the procedural problems. As you said a few minutes ago,
the Supreme Court said just four years ago that legislators
are entitled to engage in quorum breaking. It would be
pretty shocking for them to execute a complete about face
just four years later and to say, not only is
that something they're not permitted to do, it is something
(22:39):
that means they have forfeited their offices. I mean, that
seems so radical and surprising in view of the precedents
and the very clear separation of powers issues here.
Speaker 1 (22:55):
Let me just play like a little bit of like
try to take the other side of this argument right now.
I mean, you know, I think we should eventually at
some point talk about kind of the democratic issues of
democracy in all of this. But it is not the
most democratic thing for a small minority of you know,
(23:19):
the clear minority of a of a legislative body to
be able to halt, not to be able to halt
the entire work and functioning of the legislature in order
to stop you know, one particular bill that they don't like.
Right you know, theoretically, these lawmakers could just make the
(23:40):
decision to never come back, and then we just don't
have a legislature anymore, Like I mean, should should there
not be some kind of mechanism within the law to allow,
you know, a constitutionally created branch of government to function,
you know, despite you know, and overcome a minority faction
(24:06):
of that, you know, trying to prevent them from functioning period.
Speaker 2 (24:10):
Right, I mean that's Governor Abbott's argument, And like, I mean,
you can say some of this is sort of a
little bit of sort of taking this to it's worst extreme.
But he's saying, like we could bankrupt the state, Like
they could just stay away, they could never pass a budget,
they could never return they have to return to probably
run for their seats again.
Speaker 3 (24:26):
But like, yeah, you can do that over zoom.
Speaker 2 (24:27):
These days, Like we could just shut down the Texas
Texas forever.
Speaker 1 (24:31):
Yeah.
Speaker 2 (24:32):
I do think and frankly, I think a lot of this,
and I've heard this from some Republican lawmakers is the
fact that they also broke korum in twenty twenty one.
There's this sense that this is now like a tool
that's going to be used more frequently against anything they
don't like. Of course, Democrats would say, like this is
such a you know, once in a lifetime thing I
would say that, like the remedy for that, the typical
(24:54):
remedy for that right is like you can't just go
to the courts and say, like we think this is
insane that you can do this is like change the law.
Speaker 3 (25:02):
Right. The House has done some of that, They've created
increased House rules, But how can you change the law.
It's a constitutional amendment. You need a two thirds vote.
Speaker 2 (25:09):
I mean, this is the like I just talked yesterday
to represent Cody Vasuit, who's chairing the redistricting committee. He
since twenty twenty one has filed several bills to reduce
quorum to fifty percent, like almost every other state. The
problem is it's a constitutional amendment. You need a two
thirds majority to get that done.
Speaker 3 (25:27):
So they are in a little bit of a bind here.
Speaker 2 (25:31):
I will say that part of this is that if
they do get those vacancies declared quorum reduces, I bet
there just would go ahead and while while they've got
this reduced quorum, pass a bill that says quorums fifty percent.
So like there's a lot that could suddenly happen if
they were to take that sort of extraordinary step.
Speaker 1 (25:47):
David, what do you think about that? That question.
Speaker 4 (25:50):
It's it's a really great question, and it really goes
to the merits of the constitutional rule. As you observed earlier,
it's usual rule by the standards of state constitutions, setting
a two thirds quorum requirement for the House, and arguably
not a great rule, although the history suggests that it
did tend to promote more collegiality and cooperation in the
(26:13):
Texas legislature than in many state legislatures. But I do
agree with the observation that majority rule is a very
central principle of democracy, and we should ask questions about
rules that empower a minority to obstruct majority rule. But
there's a process for reforming those institutions. And in a
(26:34):
society with the rule of law, you need to follow
the rules to change the rules. When you don't do that,
you are really not complying with the rule of law,
and that's really disturbing.
Speaker 1 (26:47):
Okay, own our game out for me. What happens if
these thirteen members are tossed from office?
Speaker 3 (26:56):
What next?
Speaker 2 (26:58):
Well, I get to use a pre rite that I
that's currently burning a hole in my pocket. I mean,
I think if those thirteen are removed, you know, it
technically opens the door for any Democrat who does not
return to be removed. It effectively ends quorum breaking as
a strategy for a demo for any minority party in Texas.
(27:20):
I mean, one question I do have that's like a
legal question, is like if I mean, they're at ninety
five to ninety seven, like they're pretty close to quorum.
If they make quorum, can the Texasupreme Courts throw this
out as moot? Like can they we resolve this constitutional
crisis that way?
Speaker 4 (27:38):
I don't know. I mean, it seems like if there
are it seems like the theory in this case is
that legislators who are not showing up are in so
doing producing a vacancy. And it doesn't seem like that
goes away just because other legislators have shown up. I mean,
it seems pretty clear to me that not show up
(28:00):
for the purpose of denying the House of quorum does
not constitute an abandonment of office. But I'm not sure
that it would be mooted just because other legislators show.
Speaker 1 (28:10):
Up, although you know, history suggests that once they have
a quorum, the other members show up too, right, and
that right that it would be harder to make the
case that they've abandoned their office, if they have shown
back up to the legislature to do the work.
Speaker 2 (28:26):
Right, like I think probably, if they make quorum, the
people who are facing expulsion from office might make haste
in return. Yeah. Also, though they might want a ruling
on this, they might want to force the courts to
So I think there's so much unresolved that you know,
we're not going to get an answer for several weeks.
We're not going to get maps for several weeks, it seems,
unless by some miracle they make quorum on Friday. So
(28:47):
you know, yeah, this is going to be much more
extended than we thought.
Speaker 1 (28:51):
I think, okay, but I want to I want to
lay out you know, there's there's the legal precedent in
what happens on there, but there's also just the like
practicality of getting this these new maps passed. Right, So
if correct me if I'm wrong here, But if the
lawmakers are thrown out the quorum, the threshold to meet
quorum is two thirds of the members of the body,
(29:14):
not two thirds of the one hundred and fifty constitutionally
created House seats. So Democrats would I mean Republicans would
be able to meet quorum with a smaller with a
number of Democrats kicked out, which would mean they could
come back together, pass out these.
Speaker 3 (29:28):
Maps, and you know, maybe the agenda.
Speaker 1 (29:30):
Maybe we go through this whole process again with the Senate.
We would have to see, but essentially, yeah, past the
rest of the agenda that they have through, then Abbott
would be expected to call a special election. Those members
who were kicked out could run again and essentially win
their seats back. So we're essentially like there is a
world where we sort of returned to the status quo,
(29:53):
except the bills that are up in the special session
have passed during that brief period of time where we
have fewer or maybe even no Democrats in the Texas House.
Speaker 2 (30:05):
Right, we come back in twenty twenty seven with the
same people people essentially.
Speaker 1 (30:09):
Exactly, except they're all a little bit more mad at
each other than they were before.
Speaker 3 (30:13):
I think, arguably a lot more mad. I mean, I
do think like.
Speaker 2 (30:15):
This is like a real this whole episode, whatever happens,
is such a blow to whatever shreds of bipartisanship were left.
Speaker 1 (30:23):
Yeah. Yeah, well, and it's not just bipartisanship bipartisanship to
it it seems like there are all these little things
that are happening where the ability of the people of
Texas to choose their elected representation are being limited. Right, So,
I mean the maps themselves are an example of this. Right,
(30:46):
they are taking this step, you know, outside the norm.
It's happened one time before, but to essentially draw seats
that will determine who will win the seats in advance.
You know, this, you know is nothing completely new, but
it's a more extreme step. In order to do that,
you have, you know, this idea of removing democratically elected
(31:08):
democrats low capital D democratically elected capital D democrats from
office for doing something that you know, I suspect that
the people that put them in office support. Right, Separate
from that, completely unrelated to this whole fight, we have
this parallel process that's going on right now in the
(31:29):
Republican Party where essentially the State Republican Executive Committee, a
small committee of you know, elected but you know, very
activist wing people of the party are you know, pursuing
the power to censure members of their own party. In
the In the Texas House, Republican members who did not
(31:52):
align with some of the priorities of the party with
the goal of banning them from being able to be
on the primary ballot in twenty twenty six, you know,
essentially then again, a small committee of people deciding to
disqualify people who have been elected by the people in
their district to represent them. It just it just seems
(32:13):
to me like there are a lot of aspects of
democracy that are not looking real great right now.
Speaker 3 (32:21):
Yeah, I mean, I think a lot of this is.
Speaker 2 (32:25):
Like sort of walking us towards very very shaky ground.
And like, you know, to have a governor who's a
former Supreme Court justice, a former Attorney general by all
of respects, like a very smart lawyer, you know, even
just like tempt the court with this legal argument. It's
it's a new I don't know, it's a new chapter
(32:45):
we're in. I mean, David, like when you look at
this in terms of like the where we're gonna where
like our democracy is going to be when this all resolves, Like,
what's your diagnosis.
Speaker 4 (32:58):
I would say, it's it's pretty bleak. I Mean, we've
talked a lot about the violations of the state constitution
that would be created if courts were to accept these
theories that the governor and the Attorney General are advancing,
But I think it's worth taking a step back and
focusing on the objective that this is all directed to war.
We're talking here about a very unusual mid decade redistricting
(33:20):
that pretty clearly is only happening in order to gerrymander
the House map. Mid decade redistricting is historically really have
not happened when the same party drew the initial map.
That's what's really unusual here. And on top of that,
(33:41):
they did so with a stated objective of reducing the
representation of communities of color, likely making this redistricting plan
illegal under federal law as a racial gerrymander. Before you
even get to the potential violations of the Voting Rights Act. Now,
it has to be said that the US Supreme Court
has contribut a lot to the perilous state that American
(34:03):
democracy is in. I would really lay a lot of
the blame at the feet of the US Supreme Court
fundamentally for blessing partisan gerrymandering in twenty nineteen, saying that
state legislatures are permitted to engage in any degree of
partisan jerrymandering. That really is what opened the floodgates as
we're now seeing. On top of that, though, the Supreme
(34:25):
Court indicated just last week that it is likely to
further constrict the protections of the Voting Rights Act, which
was the one real protection in federal law restraining partisan gerrymandering.
If the Supreme Court were to do what a lot
of experts expect it will do in this Louisiana case
that has just been scheduled for reargument in mid October,
(34:48):
that would dismantle the one really substantial remaining check on
the ability of in particular Southern legislatures to thoroughly gerrymander
maps to deny uh, members of minority groups any political representation.
Speaker 1 (35:05):
Yeah, I mean, and we also just started this scenario
now where it really just feels like maximum political warfare, right,
and and how do we get to a point where
that's no longer the case?
Speaker 3 (35:17):
You know?
Speaker 1 (35:17):
Uh, before we right before we started recording this, Ken
Paxton put out a press release where he's saying, he's,
you know, asking a local district judge to jail back
to O'Rourke for uh, for for what, defying a court
order to stop fundraising for the Democrats as a part
of this quorum break. He quoted a quote from O'Rourke
(35:41):
at a Fort Worth rally on Saturday, where where O'Rourke said,
you know, there are no refs in this game. Fuck
the rules, right, and.
Speaker 3 (35:50):
Well we're getting kicked off Apple podcast.
Speaker 1 (35:52):
That's fine, people, people cut Joe Rogan is like the
most popular. Yeah, But I mean, you know, one of
the things you have heard from Democrats in response to
this redistricting plan is like, it's time to stop playing nice.
It's you know, it's time to We're gonna Rea. We're
gonna do this what the Republicans are doing in Texas,
we're gonna do in California, and we're gonna do in
(36:13):
New York. And it seems like each side keeps just
wanting to kind of up the game out out of
what they view as an existential danger created by the
other side in a way that it just is very
hard for me to figure out what the sort of
release valve is for all this pressure.
Speaker 2 (36:32):
And I think, I mean, we have a story today
in which I accurately describe Bill Clements as the first
Republican governor of Texas, in which we talk about like,
how in you know, I think this is true? In
I think blue states are, like you said, are pushing
this like maximum politics idea.
Speaker 3 (36:47):
Texas is as well.
Speaker 2 (36:48):
And Texas just has so much Republican power, right, And
every branch of government in Texas is so securely dominated
by the furthest reaches of the party that it's like,
you know, I think it's part of why it feels
so extreme in one direction here.
Speaker 3 (37:05):
And we hear this from Republicans a lot.
Speaker 2 (37:06):
Well, you know, Illinois does it too, and New York
does it too, and like, like you said, absolutely both
sides have pushed each other to the edge, but we
just have such complete dominance of one party here.
Speaker 1 (37:16):
Yeah, But I mean it is worth thinking about how
I think I made this point last week too, But
it's worth making again that the legislative session started this
year with a robust debate about shared governance and the
power and allowing Democrats to be a part of the process, right.
And you know, the person who won the House Speakers
(37:40):
race was won that race with the support of Democrats.
And now here we are eight months later, and those
same Democrats are being you know, the attempts are being
made to forcefully remove them from office.
Speaker 2 (37:56):
Rip those vice chairmanships that they fought so hard for.
I mean, I mean, I just do think that like
this when I say, like this is sort of the
end of any bipartisanship, Like like you said, eight months ago,
we were saying, you know, oh, you know, should they
should Democrats be chairs of committees in the House or
just vice chairs of committees? And where are we gonna
you know, And now it's like they're gonna be stripped
(38:16):
of their almost certainly right, there's all of talk about
they're gonna be stripe stripped of their vice chairmanships that era.
I think we will look back quaintly on that as
like you know, the time when Democrats held chairs in
the Texas Legislature. I mean, I think the House is
gonna look a lot more like the Senate in terms
of just like mono party dominance. And you know a
(38:37):
lot of Republicans say, like that's overdue. We've been too
too cautious.
Speaker 1 (38:40):
Yeah, yeah, absolutely, I mean, David, do you let's let's
talk about your democratic and constitutional theory part of your uh,
your areas of research. Do you do you see do
you agree with our assessment? Do you see any opportunity
here to to cool the temperature? In any way.
Speaker 4 (39:03):
Well, I think one of the tragedies here is that
there is going to be a cycle of tit for
tat where states with democratic legislatures are understandably going to
feel that they have to respond. If you know your
game theory, you know that you're just encouraging more bad
behavior on the other side if you don't have a
(39:23):
proportional response. So I think, you know, whereas historically, blue
states really had a lot more interest in creating independent
redistricting commissions and developing other state law constraints on partisan jerrymandering.
For example, California has an independent commission. New York has
(39:44):
state constitutional constraints on partisan jerrymandering. I think there's going
to be a lot of pressure for backsliding in those
blue states on these issues, which you know, might be
necessary from a game theory perspective in the situation that
we're in, but is a sad thing for our democracy
in the aggregate when progress toward improving the districting process
(40:10):
is going to be rolled back as a result of
these gerrymanders that are taking place.
Speaker 3 (40:17):
Yeah, nobody's coming out of this un scathes.
Speaker 1 (40:19):
Yeah, exactly. Well, something tells me we'll be talking about
this next week. Yeah too, but I think this is
a good place to stop right now. Thank you David
for joining us in providing your insight. Thank you Eleanor,
and thank you to our producers Robin Chris. We will
talk to y'all next week.
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