But in fact, the stage was set in 1988. That is when a Fifth Circuit Court of Appeals ruling, involving a Houston suburb, found that minority groups, blacks and Hispanics for example, could join together to claim that political maps were drawn in a discriminatory manner.
That became the Fifth Circuit’s opinion until a year ago when the court decided it had erred.
Last August, in the case of Petteway v. Galveston County, all Fifth Circuit judges, not the usual three-judge panel, decided just the opposite, overturning the decades-old decision of Campos v. City of Baytown which had allowed coalition claims.
Eleven months later the State of Texas received word that four majority-minority congressional districts were in fact unconstitutional race-based gerrymanders. The DOJ then urged the state to make corrections.
“They thought that they were obligated to do this. They thought they had to do it. Why? Well, because the Court of Appeals that covers Texas, that's the Fifth Circuit, had issued a decision almost 40 years ago, saying that those kinds of what they call ‘coalition districts’ are protected and required by the Voting Rights Act,” Hans von Spakovsky, a legal fellow at the Heritage Foundation, said on Washington Watch Thursday.
“Well, last August, in another case coming out of Texas, Galveston County, the Fifth Circuit said, ‘You know what? We made a mistake when we decided that,’” von Spakovsky told show host Jody Hice.
Now the Republican-led Texas legislature has set about redrawing the lines, a plan that would impact five districts. Democrats balked, and more than 50 of them have fled the statehouse for friendlier political climates, like Illinois, leaving the Texas legislature without the necessary quorum to conduct business.
Texas Governor Greg Abbott and Attorney General Ken Paxton have signaled intent to seek removal from office for the missing Democrats.
No known arrests made
Threats have been made, civil arrest warrants issued, and fines are looming, but no arrests have been reported.
Sen. John Cornyn, of Texas, has announced that FBI Director Kash Patel has agreed to assist in locating the lawmakers.
The FBI can be of some help but can’t charge the individuals, von Spakovsky says.
“They can't, but they can help the state of Texas locate these folks and potentially get extradition of them.”
Texas law says the legislators are subject to arrest and can be fined $500 a day.
This is not the first run-and-hide for Texas Democrats.
They twice denied the GOP a quorum in 2003 to stop Republican efforts to redraw voting maps, at one point leaving for Oklahoma and later for New Mexico. In 2021, Democrats left the state in the final days of the session over an elections bill and new voting restrictions. They stayed away for 38 days, The Associated Press reported.
Ultimately, the move only delayed the Republican-led measures that were passed once Democrats eventually returned to Austin.
While the current special session ends Aug. 20, Abbott has the authority to keep calling lawmakers back to the Capitol for 30-day special sessions to pass the redistricting bill and any other item he believes should be addressed.
Democrats’ absence is also holding up help for Texas communities devastated by the July Fourth floods that killed at least 136 people, The AP reported.
“State arrest warrants, no matter what they're for, if someone flees a state, the FBI always steps in and tries to help a state find somebody who has violated state law. That’s the situation here,” von Spakovsky said.
Civil means cash fines but no jail
A civil arrest, as opposed to a criminal arrest, means the legislators can be forced back to Texas and fined but can’t be jailed.
“It’s not just the FBI that's involved, but the very legendary Texas Rangers, who also are now involved in trying to find these folks and bring them back,” von Spakovsky said.
The missing Democrats are 12 days from running out the clock on the special session, but Abbott has vowed to call “special session after special session” until redistricting gets done.
“He has the power under the state constitution of Texas to call another special session, and he can keep doing that one after another, one after another, until they can get enough Democrats back to actually form a quorum and to vote on this plan,” von Spakovsky said.
