Texas duel highlights separation of powers
State Supreme Court is asking for legal briefs Monday on whether runaway Democrats can be forced back to the state.
HOUSTON — Some see it as a move of desperation. Others say it is simply a matter of course. But one thing is clear with the dueling lawsuits filed late last week in Austin: Texas lawmakers are at a stalemate.
The months-long battle over redistricting has now moved to the courts, with both sides hoping for some validation for their actions.
The Republicans are asking the state Supreme Court to force runaway Democrats back to Texas, and the Democrats are asking a state district court to find that Republican Gov. Rick Perry violated the state constitution by calling for an "emergency special session" when no emergency existed.
The Senate has been shut down since July 28, when 11 Democratic senators broke quorum and fled the state to keep the legislature from passing a Republican-sponsored congressional redistricting plan.
It's the second time the issue has come before the legislature this year, and the second time Democrats have quashed the vote by refusing to show.
Now the courts are being asked to untangle it all. The lawsuits deal not only with the fundamental issues of how state government should run, they also raise important questions about the separation of power among the executive, legislative, and judicial branches of government.
Can the governor, representing the executive branch, call an emergency special session of the legislature when, according to Demo-crats, no emergency exists? Or can the state Supreme Court, representing the judicial branch, force the quorum-busting senators back from Albuquerque, N.M.?
While the Founding Fathers had no idea what specific questions would arise when they divided the federal government into three separate branches, they did so saying control by one was "the quickest road to tyranny."
"In general, courts know that the separation of power is important enough to allow branches to settle their own disputes," says Paul McGreal, a constitutional law expert at the South Texas College of Law in Houston. "Unless there is something in the constitution for the court to hang its hat on, it should refuse to hear the case."
Whether it will intervene will soon become clear. The Texas Supreme Court has given the Democrats until Monday to respond to the Republicans' lawsuit, but some are questioning whether the all-Republican high court can serve as an impartial referee.
"The justices are going to be tugged between their Republican inclinations and this very strong judicial practice of declining to mess in political affairs," says Gary Keith, a lecturer in the department of government at University of Texas at Austin.
But M. Renea Hicks, the lawyer who is working on the Democrats' response, says Texas has one of the most rigid separation of power provisions of any state and believes the conservative justices will follow those provisions closely.
"The judiciary in Texas has no basis and no constitutional authority for intervening in this argument," says Mr. Hicks. "The only authority for compelling a legislator to appear falls to the legislative branch."
He says courts have shied away from intervening in similar cases. Judges in general are reluctant to get involved in political matters involving another branch of government.
If the Texas courts refuse to hear the lawsuits and the legislature is not able to pass the redistricting plan, experts believe the issue will be settled in the next election.
"If Texans believe what the Democrats are doing is bad, then they will pay for it in the next election," says Professor McGreal.