Texas Gov. Greg Abbott’s threat to quickly replace Democratic state lawmakers who left the Lone Star State in a bid to frustrate the GOP-led redistricting effort would require judges and voters alike to side with him in an unprecedented legal and political gambit.
On Sunday, the Republican governor accused the scores of Democratic lawmakers who left Texas of abandoning their office. If they didn’t return by 3 p.m. CT Monday, Abbott said in a statement, he would invoke a nonbinding advisory opinion issued by state Attorney General Ken Paxton several years ago that said it would be up to state courts to decide whether lawmakers who left office to block a quorum had, in effect, forfeited their office.
Should a court conclude they had, the governor said he would lean on his powers to “swiftly” fill a vacancy through a special election.
Such a scheme would be unprecedented and raise novel legal issues that could ultimately blow it up, said Quinn Yeargain, a state constitutional law expert at Michigan State University’s College of Law.
Neither the governor nor Paxton’s earlier opinion cited any legal authority or Texas case law on the matter, Yeargain noted. That means courts would likely need to sift through a series of major questions, chief among them whether judges even have the power to intervene in such political disputes.
But even if a court concluded that it does have the authority to decide the case, the question of whether a lawmaker’s decision to leave the state constitutes “abandonment” under the law, as Abbott claims, is another major consideration for judges.
“What abandonment would mean in this context is that they went on a cruise around the world and had no desire to return, and therefore missed votes,” Yeargain said. “It cannot possibly apply to a situation where they’re strategically using the power that they have to prevent the legislature from meeting and conducting business.”
