Gov. Greg Abbott's options to force a redistricting vote are more limited than they appear

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a day ago

Texas Gov. Greg Abbott had a message Sunday for the dozens of Democratic legislators who fled the state to derail a mega-partisan gerrymander: 'This truancy ends now.'
But Abbott's options to compel those Democrats — whose departure to Illinois and other states is preventing the state Legislature from conducting any business — to return and vote are more constrained and legally uncertain than he let on. And they may take significant time to resolve in court.
Abbott and other Texas Republicans face a hard deadline as they are preparing to adopt maps that could net the GOP five seats in the U.S. House, potentially cementing the party's majority in Congress. Maps need to be completed before the end of the year so that election officials can prepare for the state's March 3 primaries. The move has also prompted retaliation threats by Democratic governors in other states and roiled expectations for the 2026 elections, when Democrats hope to take the House and act as a check on President Donald Trump.
Here's a look at the central questions as Abbott's standoff with Texas House Democrats deepens into a monumental political and legal brawl.
Texas' constitution requires two-thirds of the state's 150 House members to be present to conduct business. That gives the 62-member House Democratic minority a break-glass-in-case-of-emergency option to grind the Capitol's business to a halt even if they would be outnumbered on an up-or-down vote.
By absconding from Austin — and the state altogether — Democrats ensured that the Legislature lacked a quorum to convene for a special session called by Abbott to address redistricting. There is some recent history on this: Democrats mounted a similar effort to 'break quorum' in 2021 in protest of election-related legislation. The effort ended after Democrats gradually trickled back into the state, amid a similar flurry of arrest threats and lawsuits.
Importantly, breaking quorum is not a crime. However, if the absentee Democratic lawmakers remained in Texas, Abbott could order state troopers to haul them to the Capitol. That's why they fled for the friendlier confines of Illinois and other blue states, where Democratic Gov. J.B. Pritzker and other allies have vowed to shelter them from Texas' demands to bring them back.
Federal laws allow states to demand the return, or 'extradition,' of criminal fugitives from other states. But because breaking quorum is not illegal, Abbott can't seek help from the courts to compel the Democrats' return.
Instead, Abbott threatened to take another action against the absentee lawmakers: Ask Texas courts to remove them from office altogether. State law permits a Texas district court to determine whether a public official has 'abandoned' his or her office, declaring it vacant — enabling the governor to set new elections to fill the empty seats.
'Come and take it,' dared state Rep. Gene Wu, the Texas House Democratic Caucus leader, in an appearance Monday morning on CNN. Wu declared Abbott's threat to be 'all bluster.'
The governor's threat is rooted in a nonbinding legal opinion issued in 2021 by Attorney General Ken Paxton, amid the last attempt by Democrats to break quorum. Paxton, notably, took no position on whether breaking quorum is constitutional.
The republican AG also declined to say whether fleeing Democrats could or should be removed from office. Rather, he called it a 'fact question for a court' that he said was beyond the scope of his office to decide. He noted instead that he could file what are known as 'quo warranto actions' in court, asking a judge to determine whether the missing lawmakers had officially vacated their seats.
How would a judge make that call? Paxton said he wasn't certain.
'We find no constitutional provision or statute establishing an exhaustive list for why a vacancy occurs or the grounds under which an officer may be judicially removed from office,' he wrote.
This is the most uncertain aspect of Abbott's gambit. Paxton's office would need to file 'quo warranto' actions in various judicial districts for more than 50 fleeing lawmakers. Judges may take up these cases on different timelines and reach different conclusions, requiring appeals that could wind their way to the Texas Supreme Court.
Paxton acknowledged in an interview with conservative podcaster Benny Johnson that the timeline would be problematic.
'The challenge is that [it] wouldn't necessarily be an immediate answer, right?' he said. 'We'd have to go through the court process, and we'd have to file … in districts that are not friendly to Republicans,' Paxton said. 'So it's a challenge because every, every district would be different. We'd have to go sue in every legislator's home district to try to execute on that idea."
And even if Abbott and Paxton win a clean sweep in removing the Democrats from office, it would then require a time-intensive process of calling special elections to fill the vacancies — and guaranteeing that the winners of those elections also remain in the state as well.
That timing matters when the GOP-led redistricting plan is on a fixed timeline: A new map must be adopted by early December in order to be in place for the 2026 midterm cycle. That would require Democrats to remain out of state for about four months while they accumulate $500-per-day civil fines. The current special Legislative session is slated to end on Aug. 19, but Abbott could call another one.
Abbott's letter, though sharply critical, stopped short of actually accusing Democrats of breaking the law. Rather, he suggested that if outsiders are helping them fundraise to cover their fines, they might run afoul of bribery laws.
'It would be bribery if any lawmaker took money to perform or to refuse to perform an act in the legislature,' Abbott said in a Fox News interview Monday. 'And the reports are these legislators have both sought money and offered money to skip the vote, to leave the legislature, to take a legislative act."
If Texas prosecutors in fact level any such charges, then Abbott's authority to return them grows stronger. He could then ask courts in Texas and Illinois to seek the return of the missing lawmakers.
'I will use my full extradition authority to demand the return to Texas of any potential out-of-state felons,' he said in his Sunday statement.
Liz Crampton contributed reporting.
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