Texas Democrats who left the state to deny Republicans a quorum in the state legislature are firing back after Gov. Greg Abbott's novel legal salvo.
The legislators made the move to obstruct any debate or passage of a new gerrymandered congressional map that state Republicans drew at the request of President Donald Trump, which makes five districts more favorable to the GOP, as the national party scrambles to prevent a wipeout in the midterm elections next year.
But Abbott is responding by filing a request for a writ of quo warranto with the state Supreme Court — staffed with many of his own appointees — arguing that the precise wording of the Texas Constitution requires all lawmakers to attend for a special session, and therefore state Rep. Gene Wu, the leader of the Democratic caucus, should be vacated from his seat, allowing the governor to select a replacement.
If the bid is successful, Abbott could try to do the same for every Democrat not in the state.
But Wu's attorneys fired back on Friday with a filing that asserts Abbott's request is illegal on several levels.
To begin with, they argued, the Texas Supreme Court doesn't even have jurisdiction over this issue in the first place, as the state constitution solely gives the legislature power to expel members, and the writ Abbott is seeking depends on material fact disputes about whether breaking quorum constitutes "abandonment" of office or that supporters providing money to Democrats as they wage the walkout are engaged in bribery, none of which any court has even decided in the first place.
Additionally, they argued, Abbott doesn't have the authority to file for a writ of quo warranto in the first place, as only state prosecutors can do that. It also violates separation of powers, they wrote, because "the Texas Constitution places the power to respond to legislators who break quorum firmly within the Legislative Department."
And finally, the state Constitution does not include breaking quorum as a disqualification for office; they wrote so "the Court cannot usurp Respondent’s two-year term of office or add abstention from quorum breaking to the list of qualifications to hold office as a state representative."
Texas Democrats plan on remaining out of the state at least past the Aug. 19 end of the special session, although Abbott has the power to call another after that. Texas Sen. John Cornyn announced earlier this week that the FBI has agreed to assist the state in tracking down the lawmakers, although it is unclear just what that would look like, as none of them have been charged with a federal or state crime.