By Steve Vladeck / Special To The Washington Post
At the tail end of what law professors often refer to as the constitutional Revolution of 1937, the Supreme Court devoted a long footnote to identifying the circumstances under which courts should and should not be skeptical of laws passed by democratically elected legislatures.
As Justice Harlan Fiske Stone wrote for the majority in United States v. Carolene Products Co. in 1938, the three types of laws potentially worthy of heightened scrutiny were those that ran afoul of express constitutional protections; those that tended to discriminate against “discrete and insular minorities”; and “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” The thread tying these categories together is democracy. The Constitution trumps democratic preferences in the first two categories; in the third, the concern is that the policy preferences at issue are not really those of the majority.
The court’s singling out laws that restrict the political process in Carolene Products is critical to what’s happening in (and outside of) Texas this week, where 51 Democratic members of the Texas House have absconded to Washington to deprive the state legislature’s lower chamber of a quorum and thereby frustrate a thinly veiled “election integrity” bill that will make it far harder for Texas Democrats, in particular, to vote. The fact that the absent legislators themselves have drawn as much or more public and media attention as the bill they are thwarting is the latest depressing reminder of how sick our democratic process has become. “Smiling House Dems fly off to DC on a private jet with a case of Miller Lite,” Texas’s Republican lieutenant governor, Dan Patrick, mocked in a tweet Monday, adding that the lawmakers were “abandoning their constituents, while the Senate works.”
Who’s guilty of a ‘stunt’? But the lesson of Carolene Products is that it’s the Texas legislation, not the actions of its legislators, that ought to be met with exacting scrutiny. The hubris here is not so much on the part of truant Texas Democratic lawmakers participating in a stunt for which Texas Republicans, including Gov. Greg Abbott, have vowed to arrest them. Republicans are trying to force Democrats to participate in a democratic process intended to undermine the ability to participate in the democratic process. Now that’s hubris. The Supreme Court in an opinion widely viewed as the cornerstone of modern constitutional law essentially said that the rules should be different for laws that make it harder to vote. Democrats, albeit in a desperate and unorthodox way, are simply trying to draw that stricter scrutiny laid out by Justice Stone in his footnote.
Like the U.S. Constitution, the Texas Constitution allows the legislature to compel the attendance of absent members; including by having Texas law enforcement officers arrest them and forcibly return them to Austin. But that authority necessarily stops at the state line. And because absence from the legislature is not a crime under Texas law, other states (and the District of Columbia) have neither the obligation nor the right to arrest the Democratic “fugitives” and return them to the Lone Star State. So long as the Democrats stay out of Texas, there is nothing that Abbott can do, at least legally, to break the logjam. And so long as they stay out of Texas until Aug. 7, the special session Abbott called after an earlier Democratic walkout foreclosed passage of the same bill during the legislature’s regular session will also expire. Abbott could call another special session, but the Democrats again could leave the state.
Republicans have fled, too: For all the criticism that Texas Democrats have come under from their Republican colleagues and conservative media, it’s worth noting that the exact reverse exercise has been happening in Oregon; albeit with less national media attention. There, for three straight years, Republicans have walked out of legislative sessions to deprive Democratic majorities of a quorum. This year, the walkout was in protest of covid-related restrictions adopted by Democratic Gov. Kate Brown. In 2020, it was in protest of legislation that would have capped greenhouse gas emissions. In 2019, it was in a not-subtle attempt to use minority political power to thwart the substantive policy priorities of the majority.
At first glance, what’s happening in Texas appears to be the mirror image of what has happened in Oregon; such that those who celebrated the Republican stalwarts in Oregon are now hypocrites for complaining about the Texas Democrats, and vice versa. One might also compare what’s happening in Texas right now to what’s happening in Washington, D.C., where Republicans are also relying on procedural chicanery — in the form of the Senate filibuster — to thwart both lowercase and capital-D democratic efforts to reform federal election laws and restore protections for voting rights that have now been twice weakened by the Supreme Court. In all cases, we’re seeing the effects of the increasing polarization of our political discourse; in which minority parties seeking to exert any leverage over legislation are left to the most extreme measures available to them.
In the abstract, then, the Texas affair is just the latest variation on a long-running (and deeply problematic) theme. It’s not hard to imagine that, as in Oregon, the Texas legislature will soon consider reforms that make it harder for even this maneuver to take place; perhaps including the imposition of criminal penalties for legislators who leave the state without authorization during a legislative session.
The distinction: But there’s something critically different about the Texas protest. Here, unlike in Oregon or Washington, D.C., the minority party is resisting compulsory participation in a democratic process that has the goal of making it harder for members of the same minority party to participate in the larger American democratic process. Consider, for example, the proposed ban on 24-hour early voting. Not only is there no evidence that allowing 24-hour early voting creates any additional election integrity concerns, but during the 2020 election, the only jurisdiction in Texas that allowed it (Harris County) just happened to be one of the most heavily Democratic — and most heavily Latino — in the country. And the Texas bill at issue, SB1, is full of similar transparently partisan restrictions to voting rules in the nation’s second-largest state.
As recently as eight years ago, these proposals would not have made it through the preclearance regime under the federal Voting Rights Act. Then, the Supreme Court eviscerated that constraint in Shelby County v. Holder. As recently as two weeks ago, these proposals would have been seriously vulnerable to challenge under Section 2 of the Voting Rights Act; the statute’s central nondiscrimination provision. Then, the Supreme Court in the Brnovich case weakened those protections, too. If the courts won’t push back against this kind of legislation, who will?
The point is not that the Texas Democrats are engaging in a form of civil disobedience that’s far more justifiable than what Republicans in Oregon or the U.S. Senate are doing; in any case, it’s not civil disobedience because what they’re doing is not illegal. The point is that, as the Supreme Court itself suggested 83 years ago, we ought to look differently at “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” If such legislation ought to justify more searching judicial scrutiny, it seems to follow that, when the courts fail us, it should justify more aggressive procedural machinations to defeat it, as well.
Steve Vladeck is a professor at the University of Texas School of Law, co-editor in chief of Just Security, co-host of the National Security Law Podcast and a CNN legal analyst.
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