Posted on 08/12/2003 5:34:52 AM PDT by Dog Gone
As early as today, the Texas Senate plans to start fining its boycotting members after the Supreme Court on Monday refused to order 11 Democratic senators to return to Texas from New Mexico.
The fines strategy was hatched shortly after the Texas Supreme Court declined to hear a lawsuit filed by Gov. Rick Perry and Lt. Gov. David Dewhurst in an attempt to force the Democrats to return to Austin to consider a new map for the state's 32 congressional districts.
Since May, the state's Republican leaders have tried to pass legislation increasing GOP representation in the Texas congressional delegation by redrawing the districts. Twice — first in the House and now in the Senate — Democrats have fled the state rather than vote on the Republican-drawn maps.
On Monday, Perry and Dewhurst said they were disappointed by the Supreme Court decision. Dewhurst said the decision by the all-Republican high court "does help provide us with better direction on how to resolve the underlying problem."
"Accordingly, when the Senate convenes on Tuesday, I expect senators will consider appropriate measures against absent members, as authorized by the Texas Senate rules and by the Texas Constitution, for the purpose of compelling their attendance," Dewhurst said.
A Senate leadership source said the "authorized measures" would be fines against the missing senators. No fine had been set, but one scenario considered would assess a $1,000 fine the first day and double the fines each subsequent day.
Senate rules make no mention of fines, but the Texas Constitution says lawmakers can "compel the attendance of absent members, in such manner and under such penalties as each House may provide."
Sen. Robert Duncan, R-Lubbock, who visited the Democrats last week, returned to New Mexico on Monday for further talks. Details about his meetings weren't immediately available.
Austin lawyer Renea Hicks, who represents the 11 boycotting senators, disagreed that fines can be assessed.
"There's got to be a Senate rule to fine them," Hicks said. "They just can't make the rules up as they go along. I don't understand how the Senate can be so lawless as not to follow their rules."
The Republicans' quick counterpunch gave Democrats little time to celebrate their legal victory.
In their lawsuit, Perry and Dewhurst asked the state's highest civil court for a writ of mandamus, a legal mechanism set up to address only the rarest and most dire acts of misconduct by public officials.
"In appellate court lingo, they are called extraordinary proceedings because they are extraordinary," former Texas Supreme Court Justice Deborah Hankinson said.
Mandamus requests are rarely granted because the high court generally does not like to take up legal questions that have not reached them through the usual process of trials and appeals.
Lawyers for the Democrats argued that the court does not have the power to issue a mandamus writ against state senators because it would violate the separation of powers between the Legislature and judiciary.
The court did not answer that question, instead issuing a one-sentence order saying that the request was denied.
By the end of the day, however, three of the court's nine justices amended the order. Justices Nathan Hecht, Priscilla Owen and Stephen Smith added: "The Court denies the petition for writ of mandamus without regard to the merits of the constitutional arguments."
The possibility of a mandamus writ could surface again in another setting. The Democrats have filed a lawsuit in state District Court in Travis County challenging the governor's authority to call a special session on congressional redistricting.
In response, Republican attorneys have asked the District Court for a writ of mandamus similar to the one rejected by the Supreme Court.
Most likely, a trial judge will follow the Supreme Court's lead, said Alexandra Albright, a University of Texas law professor who specializes in civil process.
"The issue is whether the trial court has jurisdiction," Albright said, and state law is not clear on that point.
On Monday, the Democrats opened another legal front in U.S. District Court in Laredo.
The boycotting senators are asking that the U.S. Justice Department review whether changing the Senate's internal rules has the potential of violating minority voting rights.
In federal court, the Democrats are claiming Dewhurst is wrong to abandon a tradition of requiring two-thirds of the senators — 21 of 31 — to agree before a bill can be considered.
Citing past redistricting battles, Dewhurst said he now would allow congressional redistricting to be debated with approval from only a simple majority: 16 senators. Republicans control the Senate 19-12.
Under the federal voting rights law, Hicks argued that any change in the "pattern, practice or procedure" related to voting must be reviewed to be sure it doesn't dilute the rights of minority voters.
Hicks acknowledged he's not sure whether federal officials have ever been asked to review if changing a legislative rule could harm minorities.
Capitol observers are not predicting a quick end.
"The only way the Democrats can win is if the governor loses his resolve," Austin consultant Bill Miller said.
Miller, who most recently has done work for Texas Republicans, said he doesn't expect Perry to give up. "If he said, 'OK, we're not going to do it now,' he would look pretty weak," Miller said. "That's not something many politicians aspire to."
Austin consultant Chuck McDonald said the Democrats have little to lose.
"They have no statewide offices to lose, no legislative majorities to lose, and redistricting has given them a rallying cry for the first time in a long time," said McDonald, once an aide to former Gov. Ann Richards.
Any delay helps the Democrats by potentially maintaining the current map for the 2004 elections. Democrats hold 17 of Texas' 32 congressional seats.
McDonald predicted Republicans eventually will pass a redistricting map, even if they have to wait for a special session on school finance next year or the regular session in 2005.
"Today may help get the Democrats through another election cycle," McDonald said. "People in politics tend to live from election cycle to election cycle."
Deal with them.
Maybe it should be: AWOL senators face fines noose.
This is Texas after all; let's go medieval or, rather, old-western on their candy-a$$e$.
Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.
Under the plain meaning of that, it doesn't take 2/3rds to enact penalties.
The Rats are arguing that it does, but that would turn the Constitution on its head, and render this article meaningless.
Living near Austin and the "Keep Austin Wierd" slogan makes this just normal. The lefties here at work just think the runaway dems are heros. Wait until next election. The dumbo jack@$$s will have to work very hard to get re-elected. My political circles are talking about never voting for anyone with a "D" next to their name. I normally vote split ticket in most elections. Still will, but against any "D" on the ticket.
They assumed that the overwhelming support they were getting from the major newspapers in this state would weaken GOP resolve. The Houston Chronicle today ran its 12th editorial of the year denouncing redistricting.
Then the Dems thought they had killed it when they fled to New Mexico.
They're wrong.
Perhaps the Republicans could have wimped out early in the process, but they can't now. It's politically impossible.
The Republicans will eventually prevail. The Democrats can't hide out forever.
That gives very broad powers. I hope the Republicans confiscate their salaries, too. Lots of possibilities with a statute that gives those kinds of powers. I wonder how many of those vagabonds want to lose their salaries, or their homes, or their pensions....
If I calculated correctly, that would be about $5,200 per day per Rat.
One of my close friends is starting a drive to get several prominent (and conservative) lawyers and business people to run against the runaways.
The thing that is important is to make perfectly clear that we're not backing down, and so far, we've done a pretty good job of that. Once it becomes obvious to them that we're willing to wait indefinitely, their resolve should fade.
These races are not terribly expensive to wage, and it would make a big difference.
"There's got to be a Senate rule to fine them," Hicks said. "They just can't make the rules up as they go along. I don't understand how the Senate can be so lawless as not to follow their rules."
Er, ahem.....***cough***....ahem.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.