1 00:00:18,920 --> 00:00:22,440 Speaker 1: Hello, and welcome to the Texas Tribune trip cast for Tuesday, 2 00:00:22,600 --> 00:00:26,160 August twelfth. I am Matthew Watkins, editor in chief of 3 00:00:26,239 --> 00:00:30,480 the Tribune, and I am joined by, as usual, our 4 00:00:30,559 --> 00:00:33,960 law and politics reporter Eleanor Clebanoff. Hello, Eleanor, Hello Matthew. 5 00:00:33,960 --> 00:00:34,240 Speaker 2: How are you. 6 00:00:34,520 --> 00:00:38,200 Speaker 1: I'm doing well. We were just talking about how you've 7 00:00:38,280 --> 00:00:46,159 been doing the yeomen's work of googling synonyms for unprecedented Yes. 8 00:00:46,079 --> 00:00:50,200 Speaker 2: Very March twenty twenty vibes, but more on the Texas 9 00:00:50,280 --> 00:00:51,679 legal politics side. 10 00:00:51,759 --> 00:00:54,039 Speaker 1: I feel like this is just I feel like the 11 00:00:54,119 --> 00:00:57,439 common debate among reporters right now is like, what's another 12 00:00:57,479 --> 00:01:00,600 word for flea? Flee the state. I feel like people 13 00:01:00,600 --> 00:01:05,879 are really you know, going DeCamp, you know, absconde, Yeah, 14 00:01:06,120 --> 00:01:10,120 really stretching the limits of our our language here to find. 15 00:01:10,159 --> 00:01:14,159 Speaker 2: We've gotten some negative feedback on flea people who are 16 00:01:14,159 --> 00:01:17,280 sort of supportive of the Democrats and feel like flea implies, 17 00:01:17,400 --> 00:01:21,319 you know, uh, doing so without perhaps without cause or 18 00:01:21,359 --> 00:01:24,079 without you know, sort of more of a cowardly move, 19 00:01:24,120 --> 00:01:26,760 which I think we've certainly heard Republicans sort of framing 20 00:01:26,760 --> 00:01:30,000 it that way. I kind of think flee is, you know, 21 00:01:30,120 --> 00:01:32,719 you can flee in defense of democracy. 22 00:01:32,840 --> 00:01:36,920 Speaker 1: Right, you can flee, you know, a nuclear bomb. 23 00:01:36,719 --> 00:01:41,079 Speaker 2: Exactly, say that people who flee nuclear bombs are towers. 24 00:01:41,200 --> 00:01:43,120 Speaker 1: I don't think there's a value judgment here. 25 00:01:43,239 --> 00:01:44,000 Speaker 3: That's what we say. 26 00:01:44,719 --> 00:01:49,959 Speaker 2: Yeah, so yeah, we uh abscond on the lamb. 27 00:01:50,079 --> 00:01:53,000 Speaker 3: That one feels more criminal. Yeah yeah, yeah. 28 00:01:53,040 --> 00:01:56,879 Speaker 1: So we're struggling eleanor dot clipping off at texts Tribune 29 00:01:56,920 --> 00:02:00,760 dot org. If anyone has any language recommendations for us. 30 00:02:00,840 --> 00:02:05,079 Speaker 3: My email has been you don't need me. 31 00:02:06,519 --> 00:02:07,400 Speaker 1: I apologize. 32 00:02:07,439 --> 00:02:08,960 Speaker 2: I will say one thing, and I will I want 33 00:02:08,960 --> 00:02:11,479 to publicly may a cool book for this. I made 34 00:02:11,520 --> 00:02:15,560 a an error in a story today and people emailed 35 00:02:15,560 --> 00:02:19,240 me so aggressively. But to be fair, it was warranted. 36 00:02:19,280 --> 00:02:23,400 I engaged in bill clements erasure. I misstated what year 37 00:02:23,439 --> 00:02:27,479 Texas elected its first Republican governor. People emailed me, so 38 00:02:27,599 --> 00:02:30,360 I rate on behalf of bill clements, and that's fair. 39 00:02:30,439 --> 00:02:31,000 Speaker 3: I did get it. 40 00:02:31,039 --> 00:02:33,159 Speaker 2: I was an air I introduced an error in there, 41 00:02:33,199 --> 00:02:37,280 and uh, it's amazing how intense people were about that. 42 00:02:37,479 --> 00:02:39,280 Speaker 1: They always say, you know, you don't mess with the 43 00:02:39,280 --> 00:02:42,159 bill clements hive. That's exactly. Yeah, the rule number one 44 00:02:42,199 --> 00:02:46,919 of Texas journalism. Yeah, exactly, exactly, exactly right. All right, Well, 45 00:02:47,360 --> 00:02:51,759 this week, if you haven't picked up up and picked 46 00:02:51,879 --> 00:02:55,400 up on it already, we are going to continue talking 47 00:02:55,400 --> 00:02:57,719 about the quorum break and we're going to take a 48 00:02:57,719 --> 00:03:00,680 little visit to law school, which I think is probably 49 00:03:00,719 --> 00:03:04,800 exciting to you. Yeah, you know, catching people up. I'm 50 00:03:04,840 --> 00:03:07,560 sure most people listening to the show already know. But 51 00:03:07,719 --> 00:03:11,560 Texas Democrats in the Texas House remain outside of the 52 00:03:11,639 --> 00:03:16,639 state they're fleeing. Has continued, if you will, but the 53 00:03:17,280 --> 00:03:20,840 fight has shifted maybe a little bit more to the courtroom. 54 00:03:21,159 --> 00:03:24,360 State leaders since we last spoke, including Greg Abbott and 55 00:03:24,439 --> 00:03:26,599 Ken Paxson. We'll get into that in a little bit, 56 00:03:26,879 --> 00:03:31,319 have filed lawsuits seeking to remove thirteen Democrats in the 57 00:03:31,319 --> 00:03:35,520 Texas House, including House Democratic Leader Jean wu from office, 58 00:03:36,199 --> 00:03:39,919 basically claiming that they have abandoned their duties as elected officials. 59 00:03:40,039 --> 00:03:44,520 It is an unprecedented step in which the Texas Supreme 60 00:03:44,560 --> 00:03:47,960 Court will likely ultimately decide the fate of those lawmakers 61 00:03:48,000 --> 00:03:50,759 in the coming days or maybe weeks. Joining us to 62 00:03:50,800 --> 00:03:54,120 help us understand this is David Frumkin, a law professor 63 00:03:54,159 --> 00:03:58,000 at the University of Houston who studies, administrative law, election law, 64 00:03:58,240 --> 00:04:01,479 and democratic and constitutional theory, which sounds like a pretty 65 00:04:01,479 --> 00:04:03,919 good CV for the conversation. We're about to have the 66 00:04:03,919 --> 00:04:06,960 guy we needed exactly. So David, thank you for joining us. 67 00:04:07,719 --> 00:04:08,439 Speaker 4: Great to be with you. 68 00:04:08,919 --> 00:04:11,039 Speaker 1: All Right, So I'm going to start with you, Eleanor, 69 00:04:11,240 --> 00:04:15,439 and I'm going to ask you to explain what these 70 00:04:15,680 --> 00:04:19,240 legal filings are before we go to David, to help 71 00:04:19,319 --> 00:04:22,480 us understand whether there's anything to these legal filings. So 72 00:04:22,600 --> 00:04:25,439 just sum up with for us as quickly as you 73 00:04:25,600 --> 00:04:31,439 can what legal actions Abbot and Paxton have taken against 74 00:04:31,480 --> 00:04:32,240 these Democrats. 75 00:04:32,439 --> 00:04:33,879 Speaker 2: Yeah, and I will say this is like one of 76 00:04:33,920 --> 00:04:36,399 the best parts definitively of being a journalist is that, 77 00:04:36,439 --> 00:04:38,600 like you can wake up on a Monday a week 78 00:04:38,639 --> 00:04:41,839 ago and have never heard the phrase quote warrntoe in 79 00:04:41,879 --> 00:04:43,519 your life, and by the end of the week, I'm 80 00:04:43,519 --> 00:04:46,959 sitting here being like everybody knows, like to file an 81 00:04:46,959 --> 00:04:49,120 information on a quote warrant to proceeding, you got to 82 00:04:49,120 --> 00:04:52,920 follow these different steps thanks to legal experts like Professor 83 00:04:52,920 --> 00:04:55,279 Frumpkin who educate us all on the fly. 84 00:04:55,680 --> 00:04:56,759 Speaker 3: But that's basically what this is. 85 00:04:56,759 --> 00:05:01,000 Speaker 2: They have asked first Abbot, first Governor abbot On has 86 00:05:01,079 --> 00:05:05,680 asked the Texasupreme Court to remove House Democratic Caucus Chair 87 00:05:05,800 --> 00:05:10,279 Gene Wu through this quot warrn toe preceding Attorney General 88 00:05:10,319 --> 00:05:12,959 packs and followed up with his own suit on seeking 89 00:05:13,000 --> 00:05:16,480 to remove thirteen members through the same mechanism, one Wu 90 00:05:16,560 --> 00:05:17,319 and twelve others. 91 00:05:17,920 --> 00:05:20,079 Speaker 3: And uh, yeah, that's it's. 92 00:05:19,920 --> 00:05:23,759 Speaker 2: An unprecedented filing to be used for a quorum break. 93 00:05:23,800 --> 00:05:28,360 It is basically if a public official. It can also 94 00:05:28,399 --> 00:05:30,600 be using corporate settings, but putting that aside for a second, 95 00:05:30,639 --> 00:05:34,199 if a public official has vacated their office or abandoned 96 00:05:34,240 --> 00:05:36,120 their office, it is how you get them. 97 00:05:36,079 --> 00:05:37,759 Speaker 3: Formally removed from office. 98 00:05:39,000 --> 00:05:42,399 Speaker 2: There are there's like rare precedent and how this has 99 00:05:42,399 --> 00:05:46,040 been used in you know these sort of in general, 100 00:05:46,120 --> 00:05:47,639 like how do you get somebody out of office? 101 00:05:48,000 --> 00:05:50,600 Speaker 3: It has never been used, you know, quorm break setting. 102 00:05:50,839 --> 00:05:53,079 Speaker 1: Okay, So David, I want to ask you first with 103 00:05:53,079 --> 00:05:55,439 a very simple question. I mean, is there anything laid 104 00:05:55,439 --> 00:05:59,199 out in the Constitution or elsewhere that sets sort of 105 00:05:59,600 --> 00:06:04,879 defined what kind of abandoning office? Abandoning your office means? 106 00:06:05,000 --> 00:06:07,680 Is that like what do we have to go with 107 00:06:07,839 --> 00:06:11,120 to evaluate whether these Democrats have actually abandoned their office. 108 00:06:12,759 --> 00:06:16,279 Speaker 4: The Constitution says that when a vacancy occurs in a 109 00:06:16,319 --> 00:06:19,319 legislative position, then it is the job of the governor 110 00:06:19,480 --> 00:06:23,000 to call a special election to fill that vacancy. It 111 00:06:23,040 --> 00:06:26,439 doesn't provide an exhaustive list of the conditions under which 112 00:06:26,439 --> 00:06:30,120 a vacancy would occur, and the legal theory underlying these 113 00:06:30,600 --> 00:06:34,120 actions is that a court is entitled to identify a 114 00:06:34,160 --> 00:06:36,879 vacancy under this kind of circumstance. 115 00:06:37,720 --> 00:06:42,759 Speaker 1: This circumstance being essentially leaving the state in an effort 116 00:06:42,839 --> 00:06:46,920 to make it impossible for the Texas House to do 117 00:06:48,040 --> 00:06:52,199 its job to function. Essentially, I mean this is a. 118 00:06:52,160 --> 00:06:53,199 Speaker 3: Thing, though. 119 00:06:53,759 --> 00:06:56,279 Speaker 2: I mean Texas lawmakers have been breaking quorum as we 120 00:06:56,360 --> 00:06:59,759 call it since like the eighteen seventies. Our founding fathers 121 00:07:00,120 --> 00:07:03,120 for reasons that we don't know, but our founding fathers 122 00:07:03,160 --> 00:07:05,240 set our quorum very high. They gave us a two 123 00:07:05,319 --> 00:07:08,240 thirds quorum. We're one of only four states that has 124 00:07:08,240 --> 00:07:09,319 a two thirds quorum. 125 00:07:09,680 --> 00:07:10,399 Speaker 3: It is notable. 126 00:07:10,399 --> 00:07:12,199 Speaker 2: Those are the only states that really have ever had 127 00:07:12,319 --> 00:07:16,920 quorum breaks. Most states fifty percent, fine, whatever, here two thirds. 128 00:07:17,160 --> 00:07:19,120 The legal experts or the historians I've talked to you 129 00:07:19,120 --> 00:07:24,800 feel like this reflects early Texas's wanting to make government difficult, 130 00:07:25,639 --> 00:07:27,959 small and difficult to enact. 131 00:07:28,360 --> 00:07:29,600 Speaker 3: We don't know that for sure, though. 132 00:07:29,879 --> 00:07:34,240 Speaker 1: Okay, okay, so I mean, David, help us analyze these 133 00:07:34,279 --> 00:07:37,800 legal arguments that have What do you think about the 134 00:07:37,800 --> 00:07:42,560 case that Abbott and Paxton are making about you know 135 00:07:42,639 --> 00:07:46,160 that what they have done actually constitutes, you know, abandonment 136 00:07:46,160 --> 00:07:46,600 of office. 137 00:07:47,720 --> 00:07:50,879 Speaker 4: I think the case offered by both the governor and 138 00:07:50,879 --> 00:07:54,759 the Attorney General is very weak. They really haven't pointed 139 00:07:54,839 --> 00:07:58,240 to any precedent that supports their position. In fact, the 140 00:07:58,279 --> 00:08:02,160 precedents they cite tend to support or the alternative view 141 00:08:02,560 --> 00:08:05,639 that these legislators have not abandoned their positions because they 142 00:08:05,639 --> 00:08:08,480 intend to hold and exercise their positions. They're doing what 143 00:08:08,519 --> 00:08:12,279 they're doing in order to advance their legislative goals. The 144 00:08:12,319 --> 00:08:15,759 precedents that both the governor and the Attorney General cited 145 00:08:16,160 --> 00:08:19,759 suggests that a court could identify an instance of abandonment 146 00:08:20,120 --> 00:08:23,959 when a legislative office holder is no longer trying to 147 00:08:24,000 --> 00:08:26,720 exercise their office. Say they've gone off on a cruise 148 00:08:26,759 --> 00:08:29,759 for a year and they're not even engaged in legislative business. 149 00:08:30,360 --> 00:08:33,240 That's a far cry from the kind of situation we're 150 00:08:33,240 --> 00:08:33,919 looking at here. 151 00:08:34,879 --> 00:08:37,840 Speaker 1: So I mean, basically, what you're saying, what I think 152 00:08:37,879 --> 00:08:40,360 the Democrats are maybe arguing in as well, is that 153 00:08:41,200 --> 00:08:45,120 leaving the state to break quorum is not an abandonment office. 154 00:08:45,159 --> 00:08:53,600 It's actually using it's a constitutionally created function tool lever 155 00:08:53,720 --> 00:08:56,639 that they have to execute kind of their political or 156 00:08:56,799 --> 00:08:57,720 legislative goals. 157 00:08:58,000 --> 00:08:59,440 Speaker 3: That's certainly what the Democrats are saying. 158 00:08:59,440 --> 00:09:03,360 Speaker 2: I mean, they're saying, like, the constituents we represent in 159 00:09:03,440 --> 00:09:06,639 our blue districts do not want these new maps. We 160 00:09:06,720 --> 00:09:09,559 have no way to in like sort of represent them 161 00:09:09,639 --> 00:09:12,440 and block these maps by staying here. So to best 162 00:09:12,480 --> 00:09:14,519 represent them, we must leave the state and stop the 163 00:09:14,559 --> 00:09:15,480 maps from being passed. 164 00:09:16,399 --> 00:09:16,600 Speaker 3: You know. 165 00:09:18,200 --> 00:09:20,320 Speaker 2: And we might get into this, but the Texas Supreme 166 00:09:20,360 --> 00:09:23,960 Court ruled in twenty twenty one that the Texas Constitution 167 00:09:24,240 --> 00:09:28,279 enables quorum breaking, that was their term. It also though, 168 00:09:28,399 --> 00:09:31,200 enables quorum forcing, which is like and they say that 169 00:09:31,440 --> 00:09:34,600 is something the chambers can do. They can set finds, 170 00:09:34,720 --> 00:09:37,679 they can set censure, they can even vote to expel 171 00:09:37,720 --> 00:09:42,200 a member over breaking quorum. You would need quorum and 172 00:09:42,240 --> 00:09:45,639 a two thirds vote to expel a member, So you know, 173 00:09:46,039 --> 00:09:48,559 that's a tricky thing for them to sort of get 174 00:09:48,559 --> 00:09:51,879 around now that this basically essentially more or less the 175 00:09:51,879 --> 00:09:55,960 same Supreme Court said the constitution enables quorum breaking. 176 00:09:57,000 --> 00:09:59,519 Speaker 1: Okay, so you what you are citing here is a 177 00:10:00,360 --> 00:10:04,559 an opinion by Justice Jimmy Blacklock, who now Chief Justice, 178 00:10:04,720 --> 00:10:07,600 who is now Chief Justice. Exactly. This is dating back 179 00:10:07,639 --> 00:10:12,200 to twenty twenty one, right when lawmakers fled the state 180 00:10:12,360 --> 00:10:15,600 to stop a voting a bill that would impose new 181 00:10:15,679 --> 00:10:21,759 voting restrictions. The House issued warrants to bring them back 182 00:10:21,840 --> 00:10:24,679 to the capitol, which is, you know, as you mentioned, 183 00:10:24,679 --> 00:10:27,519 allowed in the constitution, and Blacklock wrote, I'm going to 184 00:10:27,559 --> 00:10:31,360 just read the quote here. While it it being the Constitution, 185 00:10:31,480 --> 00:10:35,320 I believe does enable quorum breaking by a minority faction. 186 00:10:35,639 --> 00:10:38,840 It also enables the remaining members to compel the attendance 187 00:10:39,200 --> 00:10:42,639 of absent members. The two thirds quorum rule protects against 188 00:10:43,120 --> 00:10:46,960 legislative action by a smaller fraction of the body. And so. 189 00:10:50,039 --> 00:10:50,440 Speaker 3: There we go. 190 00:10:50,519 --> 00:10:52,480 Speaker 1: It's done. Right. They're going to reject this is that 191 00:10:52,519 --> 00:10:54,639 the well Governor. 192 00:10:54,279 --> 00:10:56,639 Speaker 2: Abbott has argued in his filing, And David, I'm curious 193 00:10:56,639 --> 00:10:58,720 your thoughts on this argument, because I found it sort 194 00:10:58,759 --> 00:11:03,120 of a compelling framing to say, well, the highway enables 195 00:11:03,159 --> 00:11:05,480 you to drive one hundred and twenty miles per hour. 196 00:11:05,720 --> 00:11:08,159 If you keep doing that, eventually we're going to take 197 00:11:08,159 --> 00:11:09,039 away your license. 198 00:11:10,240 --> 00:11:11,200 Speaker 3: I mean, what do you sort. 199 00:11:11,000 --> 00:11:13,159 Speaker 2: Of make of that argument that enabled is not doing 200 00:11:13,200 --> 00:11:15,120 that much as much work as people think it is 201 00:11:15,120 --> 00:11:16,000 in that ruling. 202 00:11:17,759 --> 00:11:19,960 Speaker 4: I think the important thing to understand here is that 203 00:11:20,000 --> 00:11:23,240 there would be a very fundamental separation of powers problem 204 00:11:23,559 --> 00:11:27,679 with a judicial officer coming in and trying to impose 205 00:11:27,840 --> 00:11:31,279 rules on the House. The Constitution assigns to the House 206 00:11:31,600 --> 00:11:35,200 the power to make its own rules of procedure. That 207 00:11:35,320 --> 00:11:38,039 implies that there are pretty strong limits on the ability 208 00:11:38,120 --> 00:11:40,919 of either the executive or the judiciary to come in 209 00:11:40,960 --> 00:11:44,279 and try to supersede those choices by the House. In fact, 210 00:11:44,320 --> 00:11:47,759 the Texas Constitution has a stronger separation of powers than 211 00:11:47,799 --> 00:11:50,639 the Federal Constitution has a separation of powers clause that 212 00:11:50,720 --> 00:11:55,039 makes explicit that where the Texas Constitution assigns to one 213 00:11:55,120 --> 00:11:58,159 branch of government of power, it prohibits the other branches 214 00:11:58,200 --> 00:12:01,320 from intruding on the exercise that power. And that's exactly 215 00:12:01,360 --> 00:12:03,720 what the governor and the Attorney General in my view 216 00:12:03,879 --> 00:12:05,440 are asking a court to do here. 217 00:12:05,960 --> 00:12:08,639 Speaker 1: Well, that's interesting because we've seen this come up recently 218 00:12:08,639 --> 00:12:13,679 in other cases. Right, the Ken Paxton remains very upset 219 00:12:13,720 --> 00:12:16,399 with some members of the Court of Criminal Appeals, right 220 00:12:16,440 --> 00:12:21,960 because they banned they prevented him from prosecuting voter fraud cases. 221 00:12:22,000 --> 00:12:25,720 If I'm not mistaken, claiming that same separation of powers. Essentially, 222 00:12:25,879 --> 00:12:30,240 you know, the AG's office is part of the executive brand. 223 00:12:30,360 --> 00:12:32,720 Speaker 2: They can't I mean, well, and in that case they 224 00:12:32,759 --> 00:12:35,039 have to be invited in by the district attorney. That's 225 00:12:35,080 --> 00:12:37,840 like not a power given to them exactly, right, which 226 00:12:37,840 --> 00:12:40,559 we should say in that case. You know, Attorney General 227 00:12:40,639 --> 00:12:43,200 Ken Paxton was very upset with that ruling. He worked 228 00:12:43,200 --> 00:12:46,279 to unseat three incumbents on that court. Two more have 229 00:12:46,320 --> 00:12:48,039 said that they are not going to run for reelection, 230 00:12:48,639 --> 00:12:52,679 and there's already been some rhetoric around, you know, I 231 00:12:52,720 --> 00:12:56,039 mean from one person particular, Michael Quinn Sullivan has said, 232 00:12:56,120 --> 00:12:59,360 like the eyes of Texas Republican primary voters are on 233 00:12:59,399 --> 00:13:02,159 the Texasupreme Court with this case. Now, like all they 234 00:13:02,159 --> 00:13:03,200 have to do is look at what happened with the 235 00:13:03,240 --> 00:13:05,320 Court of Criminal Appeals. Like there is a lot of 236 00:13:05,320 --> 00:13:08,480 pressure on the Supreme Court right now, I would say, 237 00:13:08,519 --> 00:13:11,080 like frankly, like, I think Governor Abbott and Attorney General 238 00:13:11,120 --> 00:13:13,759 Paksna put them in a bit of a buying tier. 239 00:13:13,799 --> 00:13:17,080 Speaker 1: Right, right, Because the other difference between you know, the 240 00:13:17,120 --> 00:13:21,039 federal Constitution, the federal courts, and the state courts is 241 00:13:21,080 --> 00:13:24,240 that the state courts are elected, right, And so you know, 242 00:13:24,360 --> 00:13:30,200 in this state we have nine Republican members who face, 243 00:13:31,720 --> 00:13:34,639 you know, the most important election that they will be 244 00:13:34,679 --> 00:13:38,440 involved when will be in primaries including if I'm not mistaken, 245 00:13:38,480 --> 00:13:43,039 eleanor three next year. Right. I think there are a 246 00:13:43,080 --> 00:13:45,240 lot of people watching this. You know, Jimmy Blacklock again 247 00:13:45,279 --> 00:13:47,679 you mentioned the Chief Justice, he wrote that opinion. He 248 00:13:47,759 --> 00:13:50,399 was also appointed by Governor Abbot, as were many other 249 00:13:50,440 --> 00:13:53,000 members of the Supreme Court. I think there is a 250 00:13:53,120 --> 00:13:56,600 question of, you know, is there going to be intense 251 00:13:56,919 --> 00:14:01,799 pressure electoral or otherwise? Two go along with what Abbot 252 00:14:01,799 --> 00:14:04,919 and Paston are going for. David, I wonder what you 253 00:14:05,039 --> 00:14:08,200 think about that fear by many conservatives. I mean, do 254 00:14:08,200 --> 00:14:13,639 you think that's a reasonable concern that some Democrats have? 255 00:14:15,039 --> 00:14:17,399 Speaker 4: Well, I guess I can't really answer that question as 256 00:14:17,399 --> 00:14:21,120 a legal expert. I mean, I will say that, I 257 00:14:21,159 --> 00:14:24,600 think there are some strong arguments for having a popularly 258 00:14:24,759 --> 00:14:30,000 accountable judiciary. It's a good thing that ultimately public officials 259 00:14:30,080 --> 00:14:33,120 are accountable to the people. And at the end of 260 00:14:33,159 --> 00:14:35,840 the day, the question is going to be what will 261 00:14:35,879 --> 00:14:38,960 the people put up with in their public officials? 262 00:14:40,879 --> 00:14:43,000 Speaker 2: I mean, and where we stand now, the Texas Supreme 263 00:14:43,039 --> 00:14:48,679 Court has issued this extended deadline. So Governor Abbott asked so, 264 00:14:49,039 --> 00:14:51,480 and just for context here right, Governor Abbott a former 265 00:14:52,039 --> 00:14:54,480 member of the Texas Supreme Court, a former attorney general. 266 00:14:54,759 --> 00:14:57,480 He has appointed six of these nine justices, many of 267 00:14:57,519 --> 00:15:00,279 whom have gone, all of whom now have gone, you know, 268 00:15:00,679 --> 00:15:02,679 many of whom have gone on to win reelection on 269 00:15:02,720 --> 00:15:06,120 their own. Two of them are his former general counsels, 270 00:15:06,159 --> 00:15:12,639 including Chief Justice Blacklock. He, some legal experts said, somewhat presumptively, 271 00:15:13,159 --> 00:15:16,799 asked the Supreme Court to rule on this what he 272 00:15:16,840 --> 00:15:20,360 called a constitutional crisis case in forty eight hours. They 273 00:15:20,399 --> 00:15:21,799 did not take him up on that, and just last 274 00:15:21,879 --> 00:15:24,600 night they issued this briefing schedule that will put us 275 00:15:24,600 --> 00:15:27,240 basically past Labor Day before we get a decision on this, 276 00:15:27,360 --> 00:15:29,600 which buying themselves some time. 277 00:15:29,720 --> 00:15:33,200 Speaker 1: It seems like, yeah, what do you make of that, David, 278 00:15:33,240 --> 00:15:37,799 I mean, I think what that does is it it 279 00:15:37,799 --> 00:15:41,720 brings us to a situation where we're probably going to 280 00:15:41,759 --> 00:15:45,679 go past the special session period before we get a 281 00:15:45,720 --> 00:15:48,960 ruling on this. I mean, obviously Abbott can and will 282 00:15:49,080 --> 00:15:52,080 call another special session if this one ends, and in fact, 283 00:15:52,120 --> 00:15:54,200 I think Dan Patrick came out today and said that 284 00:15:54,240 --> 00:15:55,960 he might, and the session arose. 285 00:15:56,000 --> 00:15:58,080 Speaker 2: Yeah, they said that they would adjourn Friday if they 286 00:15:58,080 --> 00:16:00,799 don't have quorum and immediately call immediately start the thirty. 287 00:16:00,639 --> 00:16:04,320 Speaker 1: Day clock over exactly. But is there anything to read 288 00:16:04,480 --> 00:16:08,799 into this kind of rejection of Abbott's request to rule 289 00:16:08,919 --> 00:16:13,559 very quickly on this and hear briefings and you know, 290 00:16:13,639 --> 00:16:14,639 kind of let this play out. 291 00:16:15,679 --> 00:16:18,600 Speaker 4: I don't think it was at all surprising, particularly in 292 00:16:18,639 --> 00:16:22,240 a situation where the Attorney General was suggesting that there 293 00:16:22,279 --> 00:16:26,840 was a standing problem with the governor's filing. So there 294 00:16:26,840 --> 00:16:29,879 are a lot of procedural issues, complicated procedural issues that 295 00:16:29,919 --> 00:16:32,440 the Court will want to look into before it rules 296 00:16:32,480 --> 00:16:35,120 on this question. The standing issue is not the only one. 297 00:16:35,240 --> 00:16:40,200 There's actually a very fundamental jurisdictional issue here. The jurisdictional 298 00:16:40,240 --> 00:16:44,600 provision that both the governor and the Attorney General have 299 00:16:44,639 --> 00:16:47,240 suggested as the basis for the Supreme Court's ability to 300 00:16:47,320 --> 00:16:52,080 rule on this question arguably does not extend to making 301 00:16:52,080 --> 00:16:56,440 a determination about a legislative vacancy. In the language of 302 00:16:56,480 --> 00:16:59,519 that jurisdictional statute says that they can rule on this 303 00:16:59,639 --> 00:17:03,039 kind of of action with respect to an officer of 304 00:17:03,080 --> 00:17:06,880 state government, But the Supreme Court has previously interpreted that 305 00:17:07,000 --> 00:17:10,839 language to refer to a narrower class of officials that 306 00:17:10,920 --> 00:17:12,640 doesn't include legislators. 307 00:17:13,279 --> 00:17:15,920 Speaker 1: And David, is what you're talking about here, this idea 308 00:17:15,960 --> 00:17:20,319 that it seems as though the rules for how you 309 00:17:20,359 --> 00:17:22,960 go about getting this removal is you go to a 310 00:17:23,000 --> 00:17:27,400 district court first, presumably one that is within the jurisdiction. 311 00:17:27,559 --> 00:17:32,240 I also believe it doesn't allow for it doesn't explicitly 312 00:17:32,240 --> 00:17:35,079 allow for the governor to make this filing. Is that 313 00:17:35,119 --> 00:17:36,359 sort of what you're talking about here. 314 00:17:36,880 --> 00:17:39,079 Speaker 4: So there are two separate issues there, one about the 315 00:17:39,079 --> 00:17:42,039 standing of the governor specifically. But you're absolutely right, and 316 00:17:42,119 --> 00:17:44,200 I think the proper jurisdictional course would have been to 317 00:17:44,200 --> 00:17:47,400 go to a district court first rather than trying to 318 00:17:48,039 --> 00:17:50,319 have an expedite at proceeding before the Supreme Court. 319 00:17:51,519 --> 00:17:53,759 Speaker 2: I mean this has been messy, right, I mean you 320 00:17:53,799 --> 00:17:56,359 sort of mentioned this right with Attorney General Paxton has 321 00:17:56,480 --> 00:18:00,359 raised standing issues about Governor Abbe being able to bring this. 322 00:18:00,519 --> 00:18:03,799 I think there's been sort of a degree of in 323 00:18:03,799 --> 00:18:05,839 fighting in the courts that creates a lot of this 324 00:18:06,000 --> 00:18:08,200 uncertainty and sort of crass. I think an opening for 325 00:18:08,240 --> 00:18:09,799 the courts to say, like we need a minute. 326 00:18:09,640 --> 00:18:12,440 Speaker 1: Yeah, let's let's actually step back and just walk through 327 00:18:12,440 --> 00:18:14,920 that process. Because I think it's, like you said, it's 328 00:18:14,960 --> 00:18:17,799 MESSI it's also kind of fascinating and interesting. There's a 329 00:18:17,839 --> 00:18:21,160 lot of dynamics here. So on August third, Democrats leave 330 00:18:21,200 --> 00:18:27,559 the state. Greg Abbott, I think that same day essentially 331 00:18:27,640 --> 00:18:30,119 threatens to remove them, saying that you know, we will 332 00:18:30,119 --> 00:18:32,359 take action to this. I think you know, I will 333 00:18:32,400 --> 00:18:35,119 speak for myself here. When I read that, I read 334 00:18:35,119 --> 00:18:37,880 that as not necessarily meaning that he would file it, 335 00:18:37,960 --> 00:18:40,039 but that you know, someone in Texas would file it. 336 00:18:40,079 --> 00:18:43,039 But regardless that that's what happens. A day later, the 337 00:18:43,079 --> 00:18:46,359 House issues arrest warrants for the members, you know, just 338 00:18:46,640 --> 00:18:49,400 quickly right standard fair. It means you can arrest them 339 00:18:49,400 --> 00:18:51,319 and essentially bring them back to the House. It doesn't 340 00:18:51,319 --> 00:18:53,759 mean you're like state line going to charge them, yeah 341 00:18:54,039 --> 00:18:56,319 and yeah, and you can only arrest people within state lines. 342 00:18:56,640 --> 00:19:01,200 And then Paxton on August fifth, announces that he'll seek 343 00:19:01,400 --> 00:19:04,119 orders to remove Democrats from their seats if they don't 344 00:19:04,160 --> 00:19:10,720 return by that Friday. Hours later, Governor Abbott files to 345 00:19:10,759 --> 00:19:15,279 specifically remove Gene Wu, the House Democratic Leader, which then 346 00:19:15,400 --> 00:19:18,640 leads maybe like an hour later for Paxton to write 347 00:19:18,640 --> 00:19:21,759 a letter to the Supreme Court essentially saying, you know, 348 00:19:22,279 --> 00:19:24,880 Governor Abbott means well, here, but you know, we all 349 00:19:24,880 --> 00:19:27,400 know he can't actually do this. Where it kind of 350 00:19:27,400 --> 00:19:31,119 looks like these two you know, high profile statewide elected 351 00:19:31,160 --> 00:19:34,359 officials are sort of fighting each other over who gets 352 00:19:34,400 --> 00:19:39,279 the right to throw out these Democrats. Meanwhile, our you know, 353 00:19:39,400 --> 00:19:43,240 senior state Senator John Cornyan, who faces a primary challenge 354 00:19:43,240 --> 00:19:47,799 from Attorney General Kin Paxton, is essentially just lobbing grenades 355 00:19:47,839 --> 00:19:52,519 from Washington d C at Ken Paxton essentially saying, you know, 356 00:19:52,640 --> 00:19:55,960 he's not doing enough. He's on a European vacation, like 357 00:19:56,039 --> 00:19:58,720 Greg Abbott is having to step in and do the 358 00:19:58,759 --> 00:20:01,319 work for the Attorney g General without him, And so 359 00:20:01,640 --> 00:20:06,279 it's this fascinating and maybe I will say hilarious, you know, 360 00:20:06,720 --> 00:20:10,400 kind of like fight within the political fight over who 361 00:20:10,400 --> 00:20:13,559 can do this and what kind of I guess political 362 00:20:13,599 --> 00:20:16,279 benefit they can get from being able to do it right. 363 00:20:16,319 --> 00:20:20,200 Speaker 2: And Paxton originally said, which I think legal experts sort 364 00:20:20,240 --> 00:20:22,519 of agree with. He said, like, we would have to 365 00:20:22,519 --> 00:20:24,119 file each of the He was like, this is going 366 00:20:24,200 --> 00:20:25,599 to be a challenge. We're gonna have to file in 367 00:20:25,640 --> 00:20:28,880 everyone's individual jurisdiction. You know, this would have to be 368 00:20:29,079 --> 00:20:32,039 you know, we're going to be in blue counties, DA, DA, DA. 369 00:20:32,640 --> 00:20:35,279 And now he came in, like you said, after these 370 00:20:35,319 --> 00:20:37,759 you know, bombs are being thrown at him and files 371 00:20:37,759 --> 00:20:39,240 in the Supreme Court and says like, oh no, no, no, no, 372 00:20:39,480 --> 00:20:42,759 I can file in the Supreme Court directly. Actually, Governor Abbot, 373 00:20:42,759 --> 00:20:46,160 we should say, is arguing he can. The one part 374 00:20:46,160 --> 00:20:48,960 of state statute says a quote warrant o proceeding can 375 00:20:49,000 --> 00:20:51,559 only be brought by the county or district attorney or 376 00:20:51,599 --> 00:20:54,160 the Attorney General and district court. Governor Abbott says, I'm 377 00:20:54,160 --> 00:20:56,880 citing a different part of state statute. Now, you know, 378 00:20:57,359 --> 00:21:00,000 Atturne General Paxton is saying, I'm citing that part of statute. 379 00:21:00,039 --> 00:21:01,640 But I think we can go directly to the Texas 380 00:21:01,640 --> 00:21:04,319 Supreme Court. So you can sort of understand the Texasupreme 381 00:21:04,319 --> 00:21:07,480 Court saying like we're gonna need a minute on all 382 00:21:07,559 --> 00:21:11,519 of this to your point, David, just like the standing 383 00:21:11,519 --> 00:21:14,319 and the jurisdictional issues and the even before we get 384 00:21:14,400 --> 00:21:18,400 to the unprecedented question of is this vacating an office, 385 00:21:18,440 --> 00:21:20,839 Like they've created a little bit of a and they 386 00:21:20,839 --> 00:21:23,680 have now consolidated those cases together and have basically said 387 00:21:24,039 --> 00:21:26,519 and this morning, Attorney or late last night, Attorney General 388 00:21:26,559 --> 00:21:29,720 Ken Paxon said he looks forward to fighting alongside Governor 389 00:21:29,759 --> 00:21:30,279 Abbott on this. 390 00:21:30,599 --> 00:21:33,680 Speaker 3: So we're all friends again. Yeah. 391 00:21:33,720 --> 00:21:38,599 Speaker 1: So I guess, David, what can you tell us about 392 00:21:38,640 --> 00:21:42,640 like how what we should expect and how we should 393 00:21:42,680 --> 00:21:45,799 watch this in the coming days, weeks and months. I mean, 394 00:21:45,839 --> 00:21:49,079 how does this do we know? Is there enough President 395 00:21:49,160 --> 00:21:52,759 President to know how this plays out in the coming weeks. 396 00:21:53,279 --> 00:21:56,480 Speaker 4: Well, as I've said, I think there's absolutely no precedent 397 00:21:56,680 --> 00:22:03,240 supporting the position of the plaintiffs here. I think it 398 00:22:03,279 --> 00:22:06,759 would be really shocking if the Supreme Court were to 399 00:22:07,039 --> 00:22:11,640 find any merit in these claims that in my view 400 00:22:11,880 --> 00:22:16,839 seemed to be completely without merit, even after you address 401 00:22:16,920 --> 00:22:21,920 the procedural problems. As you said a few minutes ago, 402 00:22:22,200 --> 00:22:25,519 the Supreme Court said just four years ago that legislators 403 00:22:25,519 --> 00:22:28,799 are entitled to engage in quorum breaking. It would be 404 00:22:29,240 --> 00:22:32,319 pretty shocking for them to execute a complete about face 405 00:22:32,440 --> 00:22:36,680 just four years later and to say, not only is 406 00:22:36,720 --> 00:22:39,440 that something they're not permitted to do, it is something 407 00:22:39,519 --> 00:22:42,839 that means they have forfeited their offices. I mean, that 408 00:22:43,319 --> 00:22:51,920 seems so radical and surprising in view of the precedents 409 00:22:52,000 --> 00:22:54,839 and the very clear separation of powers issues here. 410 00:22:55,759 --> 00:22:58,279 Speaker 1: Let me just play like a little bit of like 411 00:22:58,440 --> 00:23:00,960 try to take the other side of this argument right now. 412 00:23:00,960 --> 00:23:06,119 I mean, you know, I think we should eventually at 413 00:23:06,119 --> 00:23:08,839 some point talk about kind of the democratic issues of 414 00:23:08,880 --> 00:23:13,759 democracy in all of this. But it is not the 415 00:23:13,799 --> 00:23:19,839 most democratic thing for a small minority of you know, 416 00:23:19,880 --> 00:23:23,039 the clear minority of a of a legislative body to 417 00:23:23,160 --> 00:23:26,000 be able to halt, not to be able to halt 418 00:23:26,079 --> 00:23:29,519 the entire work and functioning of the legislature in order 419 00:23:29,599 --> 00:23:34,079 to stop you know, one particular bill that they don't like. 420 00:23:34,240 --> 00:23:40,559 Right you know, theoretically, these lawmakers could just make the 421 00:23:40,599 --> 00:23:43,759 decision to never come back, and then we just don't 422 00:23:43,799 --> 00:23:47,559 have a legislature anymore, Like I mean, should should there 423 00:23:47,640 --> 00:23:52,000 not be some kind of mechanism within the law to allow, 424 00:23:53,759 --> 00:23:58,519 you know, a constitutionally created branch of government to function, 425 00:24:00,119 --> 00:24:06,480 you know, despite you know, and overcome a minority faction 426 00:24:06,640 --> 00:24:10,839 of that, you know, trying to prevent them from functioning period. 427 00:24:10,640 --> 00:24:13,279 Speaker 2: Right, I mean that's Governor Abbott's argument, And like, I mean, 428 00:24:13,319 --> 00:24:14,599 you can say some of this is sort of a 429 00:24:14,599 --> 00:24:18,039 little bit of sort of taking this to it's worst extreme. 430 00:24:18,079 --> 00:24:20,480 But he's saying, like we could bankrupt the state, Like 431 00:24:20,519 --> 00:24:22,559 they could just stay away, they could never pass a budget, 432 00:24:22,559 --> 00:24:25,039 they could never return they have to return to probably 433 00:24:25,079 --> 00:24:26,000 run for their seats again. 434 00:24:26,039 --> 00:24:27,680 Speaker 3: But like, yeah, you can do that over zoom. 435 00:24:27,480 --> 00:24:30,079 Speaker 2: These days, Like we could just shut down the Texas 436 00:24:30,200 --> 00:24:31,000 Texas forever. 437 00:24:31,160 --> 00:24:31,720 Speaker 1: Yeah. 438 00:24:32,079 --> 00:24:34,160 Speaker 2: I do think and frankly, I think a lot of this, 439 00:24:34,200 --> 00:24:37,160 and I've heard this from some Republican lawmakers is the 440 00:24:37,160 --> 00:24:39,400 fact that they also broke korum in twenty twenty one. 441 00:24:39,559 --> 00:24:41,480 There's this sense that this is now like a tool 442 00:24:41,480 --> 00:24:45,279 that's going to be used more frequently against anything they 443 00:24:45,319 --> 00:24:47,079 don't like. Of course, Democrats would say, like this is 444 00:24:47,079 --> 00:24:49,799 such a you know, once in a lifetime thing I 445 00:24:49,839 --> 00:24:54,359 would say that, like the remedy for that, the typical 446 00:24:54,359 --> 00:24:57,680 remedy for that right is like you can't just go 447 00:24:57,720 --> 00:24:59,039 to the courts and say, like we think this is 448 00:24:59,079 --> 00:25:02,200 insane that you can do this is like change the law. 449 00:25:02,359 --> 00:25:04,079 Speaker 3: Right. The House has done some of that, They've created 450 00:25:04,119 --> 00:25:06,160 increased House rules, But how can you change the law. 451 00:25:06,640 --> 00:25:09,279 It's a constitutional amendment. You need a two thirds vote. 452 00:25:09,279 --> 00:25:12,119 Speaker 2: I mean, this is the like I just talked yesterday 453 00:25:12,160 --> 00:25:15,559 to represent Cody Vasuit, who's chairing the redistricting committee. He 454 00:25:16,079 --> 00:25:19,359 since twenty twenty one has filed several bills to reduce 455 00:25:19,400 --> 00:25:22,720 quorum to fifty percent, like almost every other state. The 456 00:25:22,799 --> 00:25:25,039 problem is it's a constitutional amendment. You need a two 457 00:25:25,079 --> 00:25:27,200 thirds majority to get that done. 458 00:25:27,720 --> 00:25:31,119 Speaker 3: So they are in a little bit of a bind here. 459 00:25:31,200 --> 00:25:32,920 Speaker 2: I will say that part of this is that if 460 00:25:32,920 --> 00:25:37,359 they do get those vacancies declared quorum reduces, I bet 461 00:25:37,400 --> 00:25:39,359 there just would go ahead and while while they've got 462 00:25:39,359 --> 00:25:42,519 this reduced quorum, pass a bill that says quorums fifty percent. 463 00:25:42,680 --> 00:25:45,519 So like there's a lot that could suddenly happen if 464 00:25:45,519 --> 00:25:47,240 they were to take that sort of extraordinary step. 465 00:25:47,720 --> 00:25:49,559 Speaker 1: David, what do you think about that? That question. 466 00:25:50,640 --> 00:25:54,279 Speaker 4: It's it's a really great question, and it really goes 467 00:25:54,359 --> 00:25:59,039 to the merits of the constitutional rule. As you observed earlier, 468 00:25:59,359 --> 00:26:03,160 it's usual rule by the standards of state constitutions, setting 469 00:26:03,160 --> 00:26:07,079 a two thirds quorum requirement for the House, and arguably 470 00:26:07,160 --> 00:26:09,640 not a great rule, although the history suggests that it 471 00:26:09,680 --> 00:26:13,839 did tend to promote more collegiality and cooperation in the 472 00:26:13,880 --> 00:26:17,000 Texas legislature than in many state legislatures. But I do 473 00:26:17,119 --> 00:26:21,079 agree with the observation that majority rule is a very 474 00:26:21,240 --> 00:26:24,599 central principle of democracy, and we should ask questions about 475 00:26:24,720 --> 00:26:30,400 rules that empower a minority to obstruct majority rule. But 476 00:26:30,480 --> 00:26:34,640 there's a process for reforming those institutions. And in a 477 00:26:34,680 --> 00:26:36,839 society with the rule of law, you need to follow 478 00:26:36,920 --> 00:26:39,799 the rules to change the rules. When you don't do that, 479 00:26:41,039 --> 00:26:44,880 you are really not complying with the rule of law, 480 00:26:44,880 --> 00:26:46,839 and that's really disturbing. 481 00:26:47,640 --> 00:26:50,240 Speaker 1: Okay, own our game out for me. What happens if 482 00:26:50,319 --> 00:26:55,200 these thirteen members are tossed from office? 483 00:26:56,839 --> 00:26:57,839 Speaker 3: What next? 484 00:26:58,200 --> 00:26:59,799 Speaker 2: Well, I get to use a pre rite that I 485 00:27:00,759 --> 00:27:03,759 that's currently burning a hole in my pocket. I mean, 486 00:27:03,799 --> 00:27:07,519 I think if those thirteen are removed, you know, it 487 00:27:07,640 --> 00:27:10,640 technically opens the door for any Democrat who does not 488 00:27:10,720 --> 00:27:15,559 return to be removed. It effectively ends quorum breaking as 489 00:27:15,599 --> 00:27:19,880 a strategy for a demo for any minority party in Texas. 490 00:27:20,119 --> 00:27:21,519 I mean, one question I do have that's like a 491 00:27:21,599 --> 00:27:23,960 legal question, is like if I mean, they're at ninety 492 00:27:24,000 --> 00:27:26,880 five to ninety seven, like they're pretty close to quorum. 493 00:27:27,559 --> 00:27:30,599 If they make quorum, can the Texasupreme Courts throw this 494 00:27:30,640 --> 00:27:34,480 out as moot? Like can they we resolve this constitutional 495 00:27:34,559 --> 00:27:35,279 crisis that way? 496 00:27:38,440 --> 00:27:41,960 Speaker 4: I don't know. I mean, it seems like if there 497 00:27:42,000 --> 00:27:45,880 are it seems like the theory in this case is 498 00:27:45,880 --> 00:27:48,799 that legislators who are not showing up are in so 499 00:27:49,039 --> 00:27:53,920 doing producing a vacancy. And it doesn't seem like that 500 00:27:54,279 --> 00:27:57,680 goes away just because other legislators have shown up. I mean, 501 00:27:57,720 --> 00:28:00,319 it seems pretty clear to me that not show up 502 00:28:00,359 --> 00:28:02,960 for the purpose of denying the House of quorum does 503 00:28:03,000 --> 00:28:06,480 not constitute an abandonment of office. But I'm not sure 504 00:28:06,519 --> 00:28:10,160 that it would be mooted just because other legislators show. 505 00:28:10,039 --> 00:28:14,119 Speaker 1: Up, although you know, history suggests that once they have 506 00:28:14,200 --> 00:28:16,799 a quorum, the other members show up too, right, and 507 00:28:16,880 --> 00:28:21,039 that right that it would be harder to make the 508 00:28:21,079 --> 00:28:23,440 case that they've abandoned their office, if they have shown 509 00:28:23,559 --> 00:28:26,720 back up to the legislature to do the work. 510 00:28:26,720 --> 00:28:28,680 Speaker 2: Right, like I think probably, if they make quorum, the 511 00:28:28,720 --> 00:28:32,880 people who are facing expulsion from office might make haste 512 00:28:32,880 --> 00:28:35,559 in return. Yeah. Also, though they might want a ruling 513 00:28:35,559 --> 00:28:37,200 on this, they might want to force the courts to 514 00:28:37,400 --> 00:28:41,079 So I think there's so much unresolved that you know, 515 00:28:41,240 --> 00:28:42,759 we're not going to get an answer for several weeks. 516 00:28:42,799 --> 00:28:44,599 We're not going to get maps for several weeks, it seems, 517 00:28:44,680 --> 00:28:46,960 unless by some miracle they make quorum on Friday. So 518 00:28:47,799 --> 00:28:50,839 you know, yeah, this is going to be much more 519 00:28:50,880 --> 00:28:51,640 extended than we thought. 520 00:28:51,680 --> 00:28:53,359 Speaker 1: I think, okay, but I want to I want to 521 00:28:53,519 --> 00:28:55,960 lay out you know, there's there's the legal precedent in 522 00:28:56,000 --> 00:28:57,839 what happens on there, but there's also just the like 523 00:28:57,880 --> 00:29:01,960 practicality of getting this these new maps passed. Right, So 524 00:29:02,480 --> 00:29:04,920 if correct me if I'm wrong here, But if the 525 00:29:05,000 --> 00:29:10,960 lawmakers are thrown out the quorum, the threshold to meet 526 00:29:11,039 --> 00:29:14,240 quorum is two thirds of the members of the body, 527 00:29:14,440 --> 00:29:17,680 not two thirds of the one hundred and fifty constitutionally 528 00:29:17,720 --> 00:29:21,359 created House seats. So Democrats would I mean Republicans would 529 00:29:21,359 --> 00:29:24,400 be able to meet quorum with a smaller with a 530 00:29:24,519 --> 00:29:27,160 number of Democrats kicked out, which would mean they could 531 00:29:27,160 --> 00:29:28,839 come back together, pass out these. 532 00:29:28,720 --> 00:29:31,000 Speaker 3: Maps, and you know, maybe the agenda. 533 00:29:30,640 --> 00:29:32,839 Speaker 1: Maybe we go through this whole process again with the Senate. 534 00:29:32,880 --> 00:29:34,640 We would have to see, but essentially, yeah, past the 535 00:29:34,720 --> 00:29:38,680 rest of the agenda that they have through, then Abbott 536 00:29:38,680 --> 00:29:43,440 would be expected to call a special election. Those members 537 00:29:43,519 --> 00:29:46,599 who were kicked out could run again and essentially win 538 00:29:46,640 --> 00:29:49,640 their seats back. So we're essentially like there is a 539 00:29:49,720 --> 00:29:52,880 world where we sort of returned to the status quo, 540 00:29:53,400 --> 00:29:56,759 except the bills that are up in the special session 541 00:29:56,839 --> 00:30:00,160 have passed during that brief period of time where we 542 00:30:00,240 --> 00:30:04,920 have fewer or maybe even no Democrats in the Texas House. 543 00:30:05,079 --> 00:30:07,160 Speaker 2: Right, we come back in twenty twenty seven with the 544 00:30:07,240 --> 00:30:09,640 same people people essentially. 545 00:30:09,359 --> 00:30:11,920 Speaker 1: Exactly, except they're all a little bit more mad at 546 00:30:11,920 --> 00:30:13,039 each other than they were before. 547 00:30:13,119 --> 00:30:15,000 Speaker 3: I think, arguably a lot more mad. I mean, I 548 00:30:15,039 --> 00:30:15,759 do think like. 549 00:30:15,920 --> 00:30:19,480 Speaker 2: This is like a real this whole episode, whatever happens, 550 00:30:19,559 --> 00:30:22,960 is such a blow to whatever shreds of bipartisanship were left. 551 00:30:23,079 --> 00:30:28,359 Speaker 1: Yeah. Yeah, well, and it's not just bipartisanship bipartisanship to 552 00:30:28,480 --> 00:30:30,519 it it seems like there are all these little things 553 00:30:30,559 --> 00:30:36,119 that are happening where the ability of the people of 554 00:30:36,160 --> 00:30:41,160 Texas to choose their elected representation are being limited. Right, So, 555 00:30:41,720 --> 00:30:46,079 I mean the maps themselves are an example of this. Right, 556 00:30:46,119 --> 00:30:48,839 they are taking this step, you know, outside the norm. 557 00:30:48,880 --> 00:30:51,920 It's happened one time before, but to essentially draw seats 558 00:30:51,960 --> 00:30:54,279 that will determine who will win the seats in advance. 559 00:30:54,599 --> 00:30:58,119 You know, this, you know is nothing completely new, but 560 00:30:58,200 --> 00:31:00,920 it's a more extreme step. In order to do that, 561 00:31:01,359 --> 00:31:07,240 you have, you know, this idea of removing democratically elected 562 00:31:08,000 --> 00:31:13,720 democrats low capital D democratically elected capital D democrats from 563 00:31:13,799 --> 00:31:18,440 office for doing something that you know, I suspect that 564 00:31:18,480 --> 00:31:23,799 the people that put them in office support. Right, Separate 565 00:31:23,839 --> 00:31:26,680 from that, completely unrelated to this whole fight, we have 566 00:31:26,759 --> 00:31:29,279 this parallel process that's going on right now in the 567 00:31:29,279 --> 00:31:35,160 Republican Party where essentially the State Republican Executive Committee, a 568 00:31:35,240 --> 00:31:38,920 small committee of you know, elected but you know, very 569 00:31:39,000 --> 00:31:42,759 activist wing people of the party are you know, pursuing 570 00:31:42,799 --> 00:31:48,480 the power to censure members of their own party. In 571 00:31:48,519 --> 00:31:51,880 the In the Texas House, Republican members who did not 572 00:31:52,000 --> 00:31:54,559 align with some of the priorities of the party with 573 00:31:54,680 --> 00:31:57,400 the goal of banning them from being able to be 574 00:31:57,559 --> 00:32:02,119 on the primary ballot in twenty twenty six, you know, 575 00:32:02,559 --> 00:32:06,480 essentially then again, a small committee of people deciding to 576 00:32:06,519 --> 00:32:09,640 disqualify people who have been elected by the people in 577 00:32:09,680 --> 00:32:13,640 their district to represent them. It just it just seems 578 00:32:13,640 --> 00:32:17,640 to me like there are a lot of aspects of 579 00:32:17,640 --> 00:32:19,880 democracy that are not looking real great right now. 580 00:32:21,039 --> 00:32:22,920 Speaker 3: Yeah, I mean, I think a lot of this is. 581 00:32:25,039 --> 00:32:27,960 Speaker 2: Like sort of walking us towards very very shaky ground. 582 00:32:28,119 --> 00:32:31,400 And like, you know, to have a governor who's a 583 00:32:31,440 --> 00:32:34,400 former Supreme Court justice, a former Attorney general by all 584 00:32:34,400 --> 00:32:37,759 of respects, like a very smart lawyer, you know, even 585 00:32:37,839 --> 00:32:42,200 just like tempt the court with this legal argument. It's 586 00:32:43,039 --> 00:32:45,559 it's a new I don't know, it's a new chapter 587 00:32:45,640 --> 00:32:47,440 we're in. I mean, David, like when you look at 588 00:32:47,440 --> 00:32:51,279 this in terms of like the where we're gonna where 589 00:32:51,319 --> 00:32:54,519 like our democracy is going to be when this all resolves, Like, 590 00:32:55,079 --> 00:32:57,519 what's your diagnosis. 591 00:32:58,319 --> 00:33:01,160 Speaker 4: I would say, it's it's pretty bleak. I Mean, we've 592 00:33:01,160 --> 00:33:04,759 talked a lot about the violations of the state constitution 593 00:33:05,039 --> 00:33:08,119 that would be created if courts were to accept these 594 00:33:08,160 --> 00:33:10,839 theories that the governor and the Attorney General are advancing, 595 00:33:10,880 --> 00:33:12,519 But I think it's worth taking a step back and 596 00:33:12,559 --> 00:33:16,160 focusing on the objective that this is all directed to war. 597 00:33:17,079 --> 00:33:20,680 We're talking here about a very unusual mid decade redistricting 598 00:33:20,839 --> 00:33:24,279 that pretty clearly is only happening in order to gerrymander 599 00:33:24,759 --> 00:33:29,640 the House map. Mid decade redistricting is historically really have 600 00:33:29,799 --> 00:33:33,680 not happened when the same party drew the initial map. 601 00:33:35,359 --> 00:33:41,079 That's what's really unusual here. And on top of that, 602 00:33:41,559 --> 00:33:44,839 they did so with a stated objective of reducing the 603 00:33:44,880 --> 00:33:49,319 representation of communities of color, likely making this redistricting plan 604 00:33:49,960 --> 00:33:53,640 illegal under federal law as a racial gerrymander. Before you 605 00:33:53,720 --> 00:33:57,400 even get to the potential violations of the Voting Rights Act. Now, 606 00:33:57,400 --> 00:33:59,440 it has to be said that the US Supreme Court 607 00:33:59,480 --> 00:34:03,559 has contribut a lot to the perilous state that American 608 00:34:03,599 --> 00:34:05,960 democracy is in. I would really lay a lot of 609 00:34:06,000 --> 00:34:08,119 the blame at the feet of the US Supreme Court 610 00:34:08,320 --> 00:34:12,960 fundamentally for blessing partisan gerrymandering in twenty nineteen, saying that 611 00:34:13,360 --> 00:34:17,519 state legislatures are permitted to engage in any degree of 612 00:34:17,719 --> 00:34:21,880 partisan jerrymandering. That really is what opened the floodgates as 613 00:34:21,880 --> 00:34:25,599 we're now seeing. On top of that, though, the Supreme 614 00:34:25,599 --> 00:34:29,679 Court indicated just last week that it is likely to 615 00:34:29,960 --> 00:34:32,840 further constrict the protections of the Voting Rights Act, which 616 00:34:32,960 --> 00:34:38,880 was the one real protection in federal law restraining partisan gerrymandering. 617 00:34:39,079 --> 00:34:41,119 If the Supreme Court were to do what a lot 618 00:34:41,119 --> 00:34:44,280 of experts expect it will do in this Louisiana case 619 00:34:44,559 --> 00:34:47,639 that has just been scheduled for reargument in mid October, 620 00:34:48,320 --> 00:34:52,480 that would dismantle the one really substantial remaining check on 621 00:34:52,559 --> 00:34:58,679 the ability of in particular Southern legislatures to thoroughly gerrymander 622 00:34:58,760 --> 00:35:04,559 maps to deny uh, members of minority groups any political representation. 623 00:35:05,920 --> 00:35:08,400 Speaker 1: Yeah, I mean, and we also just started this scenario 624 00:35:08,480 --> 00:35:12,559 now where it really just feels like maximum political warfare, right, 625 00:35:12,639 --> 00:35:15,559 and and how do we get to a point where 626 00:35:15,599 --> 00:35:16,880 that's no longer the case? 627 00:35:17,039 --> 00:35:17,199 Speaker 3: You know? 628 00:35:17,920 --> 00:35:21,320 Speaker 1: Uh, before we right before we started recording this, Ken 629 00:35:21,360 --> 00:35:24,159 Paxton put out a press release where he's saying, he's, 630 00:35:24,280 --> 00:35:28,239 you know, asking a local district judge to jail back 631 00:35:28,239 --> 00:35:33,960 to O'Rourke for uh, for for what, defying a court 632 00:35:34,079 --> 00:35:37,440 order to stop fundraising for the Democrats as a part 633 00:35:37,440 --> 00:35:41,800 of this quorum break. He quoted a quote from O'Rourke 634 00:35:41,960 --> 00:35:45,840 at a Fort Worth rally on Saturday, where where O'Rourke said, 635 00:35:45,880 --> 00:35:47,880 you know, there are no refs in this game. Fuck 636 00:35:47,960 --> 00:35:50,960 the rules, right, and. 637 00:35:50,360 --> 00:35:51,880 Speaker 3: Well we're getting kicked off Apple podcast. 638 00:35:52,079 --> 00:35:56,079 Speaker 1: That's fine, people, people cut Joe Rogan is like the 639 00:35:56,159 --> 00:36:00,239 most popular. Yeah, But I mean, you know, one of 640 00:36:00,280 --> 00:36:02,719 the things you have heard from Democrats in response to 641 00:36:02,760 --> 00:36:06,360 this redistricting plan is like, it's time to stop playing nice. 642 00:36:06,440 --> 00:36:09,480 It's you know, it's time to We're gonna Rea. We're 643 00:36:09,480 --> 00:36:11,920 gonna do this what the Republicans are doing in Texas, 644 00:36:11,960 --> 00:36:13,679 we're gonna do in California, and we're gonna do in 645 00:36:13,719 --> 00:36:18,119 New York. And it seems like each side keeps just 646 00:36:18,239 --> 00:36:21,000 wanting to kind of up the game out out of 647 00:36:21,039 --> 00:36:24,119 what they view as an existential danger created by the 648 00:36:24,159 --> 00:36:26,400 other side in a way that it just is very 649 00:36:26,400 --> 00:36:29,519 hard for me to figure out what the sort of 650 00:36:29,639 --> 00:36:31,519 release valve is for all this pressure. 651 00:36:32,079 --> 00:36:34,599 Speaker 2: And I think, I mean, we have a story today 652 00:36:34,679 --> 00:36:36,719 in which I accurately describe Bill Clements as the first 653 00:36:36,760 --> 00:36:39,239 Republican governor of Texas, in which we talk about like, 654 00:36:39,280 --> 00:36:41,559 how in you know, I think this is true? In 655 00:36:41,880 --> 00:36:43,840 I think blue states are, like you said, are pushing 656 00:36:43,840 --> 00:36:47,159 this like maximum politics idea. 657 00:36:47,519 --> 00:36:48,440 Speaker 3: Texas is as well. 658 00:36:48,440 --> 00:36:52,400 Speaker 2: And Texas just has so much Republican power, right, And 659 00:36:52,639 --> 00:36:56,800 every branch of government in Texas is so securely dominated 660 00:36:56,880 --> 00:36:59,840 by the furthest reaches of the party that it's like, 661 00:37:00,639 --> 00:37:03,280 you know, I think it's part of why it feels 662 00:37:03,320 --> 00:37:04,880 so extreme in one direction here. 663 00:37:05,079 --> 00:37:06,719 Speaker 3: And we hear this from Republicans a lot. 664 00:37:06,920 --> 00:37:09,239 Speaker 2: Well, you know, Illinois does it too, and New York 665 00:37:09,239 --> 00:37:11,880 does it too, and like, like you said, absolutely both 666 00:37:11,920 --> 00:37:14,679 sides have pushed each other to the edge, but we 667 00:37:14,760 --> 00:37:16,679 just have such complete dominance of one party here. 668 00:37:16,960 --> 00:37:19,639 Speaker 1: Yeah, But I mean it is worth thinking about how 669 00:37:20,360 --> 00:37:22,079 I think I made this point last week too, But 670 00:37:22,119 --> 00:37:26,679 it's worth making again that the legislative session started this 671 00:37:26,800 --> 00:37:31,320 year with a robust debate about shared governance and the 672 00:37:32,039 --> 00:37:36,800 power and allowing Democrats to be a part of the process, right. 673 00:37:36,880 --> 00:37:40,800 And you know, the person who won the House Speakers 674 00:37:40,880 --> 00:37:45,840 race was won that race with the support of Democrats. 675 00:37:45,880 --> 00:37:49,960 And now here we are eight months later, and those 676 00:37:49,960 --> 00:37:54,159 same Democrats are being you know, the attempts are being 677 00:37:54,199 --> 00:37:56,840 made to forcefully remove them from office. 678 00:37:56,760 --> 00:37:59,599 Speaker 2: Rip those vice chairmanships that they fought so hard for. 679 00:37:59,679 --> 00:38:01,599 I mean, I mean, I just do think that like 680 00:38:01,920 --> 00:38:03,360 this when I say, like this is sort of the 681 00:38:03,440 --> 00:38:05,880 end of any bipartisanship, Like like you said, eight months ago, 682 00:38:06,079 --> 00:38:09,039 we were saying, you know, oh, you know, should they 683 00:38:09,360 --> 00:38:11,920 should Democrats be chairs of committees in the House or 684 00:38:11,960 --> 00:38:14,480 just vice chairs of committees? And where are we gonna 685 00:38:14,599 --> 00:38:16,920 you know, And now it's like they're gonna be stripped 686 00:38:16,960 --> 00:38:18,719 of their almost certainly right, there's all of talk about 687 00:38:18,719 --> 00:38:22,000 they're gonna be stripe stripped of their vice chairmanships that era. 688 00:38:22,159 --> 00:38:24,199 I think we will look back quaintly on that as 689 00:38:24,280 --> 00:38:27,119 like you know, the time when Democrats held chairs in 690 00:38:27,199 --> 00:38:30,119 the Texas Legislature. I mean, I think the House is 691 00:38:30,159 --> 00:38:31,639 gonna look a lot more like the Senate in terms 692 00:38:31,679 --> 00:38:37,079 of just like mono party dominance. And you know a 693 00:38:37,079 --> 00:38:39,199 lot of Republicans say, like that's overdue. We've been too 694 00:38:39,599 --> 00:38:40,199 too cautious. 695 00:38:40,280 --> 00:38:44,880 Speaker 1: Yeah, yeah, absolutely, I mean, David, do you let's let's 696 00:38:44,920 --> 00:38:51,079 talk about your democratic and constitutional theory part of your uh, 697 00:38:51,159 --> 00:38:54,920 your areas of research. Do you do you see do 698 00:38:55,639 --> 00:38:59,159 you agree with our assessment? Do you see any opportunity 699 00:38:59,239 --> 00:39:02,880 here to to cool the temperature? In any way. 700 00:39:03,440 --> 00:39:06,920 Speaker 4: Well, I think one of the tragedies here is that 701 00:39:06,960 --> 00:39:08,840 there is going to be a cycle of tit for 702 00:39:08,960 --> 00:39:14,679 tat where states with democratic legislatures are understandably going to 703 00:39:14,679 --> 00:39:17,239 feel that they have to respond. If you know your 704 00:39:17,239 --> 00:39:20,679 game theory, you know that you're just encouraging more bad 705 00:39:20,719 --> 00:39:23,639 behavior on the other side if you don't have a 706 00:39:23,679 --> 00:39:29,320 proportional response. So I think, you know, whereas historically, blue 707 00:39:29,320 --> 00:39:32,960 states really had a lot more interest in creating independent 708 00:39:33,000 --> 00:39:40,199 redistricting commissions and developing other state law constraints on partisan jerrymandering. 709 00:39:40,639 --> 00:39:43,840 For example, California has an independent commission. New York has 710 00:39:44,519 --> 00:39:49,440 state constitutional constraints on partisan jerrymandering. I think there's going 711 00:39:49,480 --> 00:39:52,559 to be a lot of pressure for backsliding in those 712 00:39:53,039 --> 00:39:56,000 blue states on these issues, which you know, might be 713 00:39:56,159 --> 00:39:59,880 necessary from a game theory perspective in the situation that 714 00:40:00,039 --> 00:40:03,760 we're in, but is a sad thing for our democracy 715 00:40:04,320 --> 00:40:10,400 in the aggregate when progress toward improving the districting process 716 00:40:10,800 --> 00:40:13,000 is going to be rolled back as a result of 717 00:40:13,039 --> 00:40:16,039 these gerrymanders that are taking place. 718 00:40:17,480 --> 00:40:19,719 Speaker 3: Yeah, nobody's coming out of this un scathes. 719 00:40:19,480 --> 00:40:23,199 Speaker 1: Yeah, exactly. Well, something tells me we'll be talking about 720 00:40:23,239 --> 00:40:25,199 this next week. Yeah too, but I think this is 721 00:40:25,239 --> 00:40:27,880 a good place to stop right now. Thank you David 722 00:40:27,880 --> 00:40:30,760 for joining us in providing your insight. Thank you Eleanor, 723 00:40:30,960 --> 00:40:33,159 and thank you to our producers Robin Chris. We will 724 00:40:33,199 --> 00:40:34,800 talk to y'all next week.