Burnt Orange Report

C'mon, BOR...you know what Perry always says to the Texas Election Code when he violates it....

in unison everyone:

"ADIOS MOFO!"

I posted this on http://mylocalpolitics.com/ in the Texas section. Feel free to add stories and crosspost there.

The most likely remedy for this, K-T, would be injunctive relief. The question is, what would the courts enjoin the governor from doing? Or would they simply decide that this is a "political question" and deny jurisdiction?

I'm not well-educated on the terms of the election code, but my guess is this is one of those things that would be more difficult than simply filing a lawsuit. Weighty issues of jurisdiction and code construction are probably involved.

Article I, Section 13 of the Texas Constitution expressly provides that for every violation of a protected interest, the injured party "shall have remedy by due course of law."

The problem is that here we have the government involved. And Texas has sovereign immunity which poses some obstacles to redress. However, because a prospective suit would be brought because of unlawful behavior by the government, a court might be inclined to offer relief...also, because Perry was acting beyond his powers by calling a special session without calling for a special election in a timely fashion, a court might offer relief. As the Tx. Supreme Court has held:

"An entity or person whose rights have been violated by the unlawful action of a state official, may bring suit to remedy the violation or prevent its occurrence, and such suit is not a suit against the state requiring legislative or statutory authorization." Director of Dept. of Agriculture and Environment v. Printing Industries Association of Texas.

But like Jim D wrote, that relief may be limited to an injunction. And any injunctive relief would, I can only imagine, be limited to putting the special session on hold until the vacant House seat is filled. This of course, may come too late. Alternatively, I suppose, a suit could argue that the entire special session's actions should be voided because the district was without representation. This is, of course, speculation, but it does not seem unreasonable given past Texas Supreme Court decisions - think of the school finance cases where the courts have enjoined the state from funding schools until the system is repaired.

In any case, this is a very interesting issue that has come up, and I'm anxious to see how it plays out.

~casey

I agree with Casey's assessment, but I think he may be too glum on the outlook for legal action. Like the story says, the Lege is essentially making law while 130,000 Texans are not represented. It would just take one of those 130,000 disenfranchised folks to file the suit to ignite the haystack, right?

Injunctive relief is equitable; it is highly unlikely that a court would balance the equities in favor of voiding or otherwise shutting down a legislative session. First, because it violates the separation of powers. Second, because it would likely cause more harm than good for the public at large (outside of Dist. 143).

There may be other equitable orders, however, which would compel the Governor to call the election.

Moreover, there is some case law (to wit, a 1991 Texas Supreme Court concurrence) suggesting that the Court may, "of necessity" call a special session of the Legislature on its own accord when the Governor cannot or will not do so. I don't know if this statement is actually good law or not, and seems to fly in the face of the division of powers. Nonetheless, extending the principle suggests that it may be possible for the courts to order the special election themselves.

Unfortunately, I am mostly just making this up as I go along. Hopefully it's persuasive-sounding b.s.!

And to add insult to injury, it appears that I confused our new wonderful bloggers Phillip Martin with Karl-Thomas... whoops!

At any rate, it's about frickin time for there to be an election in D.143. The politics of the Salinas vs. Hernandez vs. everybody-else race is just absolutely killing me.

This is typical of the Dunnam-esque hysteria at needing every vote on the floor for the next few days. First, no court is going to stop the Legislature from doing their business (they are thinking judicial payraise here). Focus on the battle at hand, this is weak . . . .

No one is suggesting that the legislature stop doing it's business - all Dunnam and colleagues want us is for them to start doing our business instead of just the business of TAB, TRMPAC, et al. I think Phil's point, before the chatter about injunctive relief, was that all Texans should be represented without waiting until November for a special election. Then again, this "leadership" discounts the folks anyway on a daily basis, so why would that ever occur to them?

Here's a thought: maybe Phil should read the Texas Constitution before he spins his poorly-conceived legal theories. Under the Constitution, the Governor has 20 days to call a special election to fill a vacancy. So, if my math is correct, Perry had until May 26 to set the special election date -- a full five days before the end of the regular session, long before a special session was required. So, good luck with finding a judge in Harris County to provide that injunctive relief you all have convinced yourselves is viable. Are there any Democrat judges left in Harris County?

Legal eagle should also read the election code. Even though Perry may have had twenty days after he called a special session to call an expedited special election, the bigger point remains: what's wrong with speaking out for what is right instead of helping Perry make excuses to stretch the law as far as possible to his party's advantage. Is this a cynic's world totally browbeaten by the court antics of Bush 2000 and DeLay 2003? And FYI, I think the action could be filed in Travis Co., where Perry resides.

This is not about partisanship. It's not even about politics. It's about principles, and following the law.

For legal eagle...I know you're looking at the same laws I am, and I appreciate that. The point is, that the election code also mentions that a vacated seat should be filled "during the 60 days immediately prior to the date of convening any session of the legislature," that this election should occur between 21 and 45 days after the election is ordered, and that "this section supersedes other provisions of this title to the extent of any conflict."

To be clear, I agree that Perry acted legally during the regular session. I stated that in the article. I also clearly mentioned that we should look into whether or not, once the special session was called, Perry should call for a special election to be called sooner. I mentioned that in the article. I also never pretended to be a legal scholar, which is why I posted this as a question, and said it was a matter worth looking into. If the shoe were on the other foot, and this were a Democrat as Governor, I would have asked the same question.

Again, its not about partisanship or politics. It's about principles, and the people of House District 143.

Hope everyone enjoys reading and posting...

Phillip, the law is a morass, and it'd probably be weeks before anything got done.

I'd urge just to try to spin this as politics (e.g. tell the folks over in Denver Harbor that the governor just doesn't give a damn about them, and has a mañana attitude toward their representation). The fact is that we're up to our yin-yangs in principles.

I don't like to play the party pooper, but didn't Moreno die on May 6th? Wasn't the last day on the 30th? I think that's only 24 days, and the code says "more than 25 days." I'm as disappointed as y'all are, but I've been telling people about this post and someone caught that.

It does say more than 25 days...but it also says 60 days before the convening of any session. The special was convened on June 21, 46 days after Rep. Moreno died...

Ha ha, forget my last post. Reading it quickly, I saw "and" at the end of subsection (a-1), not "or."

Damn, impeccable timing! I was writing to correct myself, but you beat me to it

Guys, this is nitpickery

Well, as Democrats, we've always been good at talking about things.

As usual, it's the doing that we seem to have a real problem grasping.

I second William's comments and refer you to my comments from last week regarding arm-chair punditry.

I'm sure there were a few republican folks in 2000 that said, "shoot, we can't file a lawsuit against Gore." boy were they wrong.

The point is - if the governor did something wrong, call him on it. Every time. No excuses. No "this wont work" or "guys, we have bigger fishes to fry" comments. There is NO bigger fish to fry than the mofo in that purty white mansion over by the Capitol. And if it takes a million little ants gnawing off his face to take him down, then that's just as effective as a silver bullet.

This isn't a case of the all-too-popular "pasta approach" where folks throw ideas at a wall over and over again until something sticks. This is an issue of accountability....of responsibility...and of opportunity (to maybe win, ya know). Now gitter dun.

that is all.

Also, certainly experienced politicos such as yourselves don't need a lecture on Media Relations 101. With a story like this one, I think it would go something like, oh, "The chief executive of the state of Texas allows the disenfranchisement of 130,000 voters during highly important special session . . ."

Without this post, would anyone even be talking about the political implications of Perry's neglect? Yes, the legal system often moves through various landmines at a glacial pace. Election law experts I've talked to say Phil's legal point does have validity, and Perry's defense may as well. But thanks to this BOR post, at least some folks are talking about the politics of Perry's neglect, so thanks guys. The question no one has asked is what Perry might have done had there been a vacancy in a "different" district.

How much clearer can I be? Read the state Constitution, Article 3, Section 13 to be precise.

Ed, the Governor did not have 20 days after he called the special session to call the election. He had 20 days from the time the vacancy occurred to call the election. The vacancy occurred on May 6. Therefore, the deadline for calling the election was May 26, five days before the end of the regular session. Considering both the House and Senate were still working towards a
solution on school finance on May 26, no one on this board can argue with a straight face that the Governor knew he would be calling a special session for the day he did on May 26.

And Phil, the law is the law, and the Constitition is clear as it can be. Also, the law does not give the Governor the power or authority to call a special election, and then at a later date rescind that proclamation and declare an election for the same seat on a different day. That would be changing the rules of the game in the middle of the game. All I'm saying is your post was wrong as to the law and Constitution, and you should just
recognize that. After all, the law and Constitution cannot be suspended or ignored as you guys see fit for any political purpose.

The part of the law I had raised issue with was the Texas Election Code...I didn't ask if he violated the Texas Constitution, I asked if he violated the Texas Elections Code, which explicitly states that an expedited election shall be ordered if a vacancy occurred 60 days before the convening of any session. The special session convened, and an expedited election to fill the vacancy in HD 143 had not been ordered.

I also completely agree that he was not going to call a special session before May 26, but he sure did by June 18, and he could have ordered an election then. The Texas Elections Code is part of the law and I believe that the Governor can rescind his own proclamations...and I'm sure that the people of HD 143 would be more than willing to accept an earlier, expedited election, considering the fact that their concerns have not been represented in the Texas House over the course of this special session.

I'm not asking anyone to change the rules---I'm just asking that we all make sure we're following them. I want people to look into this, and I appreciate everyone's concerns.

Legal eagle----Perry doesn't have to rescind a proclamation, he just needs to make a new one, and based on his ever-growing number of proclamations for the special session, it seems he is more than capable of proclaiming whatever he wants.