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