On Tuesday, Texas Attorney General Ken Paxton issued a legal threat against quorum-breaking Democratic members of the Texas House, stating in a news release that he will ask for a court ruling declaring vacant the seats of any lawmakers who do not return to work by Friday.
“Democrats have abandoned their offices by fleeing Texas, and a failure to respond to a call of the House constitutes a dereliction of their duty as elected officials,” Paxton said in the release.
Make no mistake: The intention of the redistricting bill is explicitly political gerrymandering.
Despite Paxton’s bluster, vacating a seat of a member who broke quorum is a legally dubious tactic that has never before been tried in Texas. That said, Texas Democrats are also realistic about quorum-breaking’s long-term viability, recognizing that mere delay is the most likely outcome. And if the redistricting bill is passed, Democratic lawmakers in other states vow retaliatory redistricting of their own.
Paxton’s statement is the latest escalation in Texas Republicans’ unusual mid-decade redistricting effort, advanced at the behest of President Donald Trump. The president publicly called for the creation of five new seats in Texas favorable to his party in order to help preserve a Republican majority in the House of Representatives in next fall’s midterm elections.
Texas Democrats lack the votes to prevent Republicans from passing their new congressional map, but they do have enough to slow the process. On Sunday, over 50 Texas House Democrats fled the state to deny the chamber a quorum in a last-ditch attempt to delay the passage of the redistricting bill. In response, Texas Republicans have imposed daily fines on the quorum-breakers and issued civil arrest warrants against the lawmakers. And now Paxton and Texas Gov. Greg Abbott are threatening to remove the Democrats from office.
“It’s bogus on its face,” said Matt Angle, the founder of Lone Star Project, a Democratic PAC in Texas. “In order for your seat to be vacated, you have to do something that is contrary to the duties of the office, which usually means abandoning them. And then you have to do something that indicates that you have revoked your seat. In this case, it’s not even close to that. And breaking quorum is an action that’s available to legislators within the Texas Constitution.”
The Supreme Court of Texas ruled in 2021 that the Texas Constitution allows lawmakers to break quorum, even if it also provides the state tools to impose consequences aimed to force members back. Various legal experts have cast doubts on Paxton’s ability to argue that breaking quorum qualifies as “abandonment of office” and thereby allow him to take legal action necessary to vacate their seats.
“I am aware of absolutely no authority that says breaking quorum is the same as the intent to abandon a seat,” Charles “Rocky” Rhodes, a constitutional law expert at the University of Missouri law school, told The Texas Tribune. “That would require the courts extending the premise to the breaking point. It’s inconsistent with the very text of the Texas Constitution.”
Democrats, on the other hand, ultimately are looking to the judicial branch to stop this effort.
If Paxton makes good on his threat, he will face a series of long and complex legal fights in multiple districts across the state, some of which may not be so friendly to his arguments. But the point is somewhat irrelevant — those cases have practically no chance of reaching a meaningful decision prior to the eventual return of the quorum-breaking Texas Democrats. The Texas House Democratic Caucus has enough members committed to staying out of state until the end of this special session, which Abbott called to redistrict the state. But nothing prevents Abbott from calling another special session in the future, and Texas Democrats have admitted that they have no intention to stay away from their homes and families indefinitely.
“What’s at risk is not any one of these seats,” Angle said. “What’s at risk is our democracy. That’s what they’re really going after.”
Make no mistake: The intention of the redistricting bill is explicitly political gerrymandering aimed at maintaining Republican power at the national level, during a time when Trump’s approval rating is approaching a historic low. Statements from the Texas GOP and various Republican elected officials in Texas have made this abundantly clear.
“If we ever lose Texas to the Democrats, the Republicans will never have the White House again,” Texas state Rep. Brian Harrison told CNN. “So, it’s incumbent upon us, people like me, in the legislative branch.”
Democrats, on the other hand, ultimately are looking to the judicial branch to stop this effort. While political gerrymandering is legal due to a series of Supreme Court rulings, Democratic critics of the proposal argue that the only way the proposed map will result in five new Republican seats is for it to illegally discriminate against racial minorities.
“This is a straight-up illegal racial gerrymander in terms of what they have proposed,” Democratic Texas state Rep. Chris Turner told MSNBC. “It is a bill that uses the classic tools of cracking and packing Black and brown communities throughout the state to achieve an electoral outcome, and it’s a violation of the Voting Rights Act. It’s insidious and illegal.”
Aside from challenging the bill in court if it is passed — an uncertain pathway due to a pending Supreme Court case that could eviscerate the Voting Rights Act — their only strategy left is to delay, lobby their Democratic allies in other states to promise their own redistricting, and hope that Republicans in Texas and in Washington will rescind the bill to prevent a subsequent domino effect of retaliatory gerrymandering.
Democratic governors in California, Illinois and New York have already floated their own redistricting plans, aimed at canceling out GOP gains in places like Texas. And if redistricting escalates into a multistate arms race, the erosion of democratic norms could push the United States further down the path toward what political scientists call competitive authoritarianism: “in which the coexistence of meaningful democratic institutions and serious incumbent abuse yields electoral competition that is real but unfair.”
But the way Texas Democrats see it, that’s not the way it has to go down.
“I think the only way that ends is for Donald Trump to understand that is the outcome of what he’s started and tell Abbott to stand down and just call the whole thing off,” Turner told MSNBC. “I’m not predicting that’s likely, because Trump clearly is not a particularly rational person who thinks things out well. But that’s the only path that I can think of right now that prevents the domino effect.”
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