Analysis: Legislative Overtime? Look to the Federal Courts

If the Texas Legislature has to come back for special sessions after its current session ends, it might not be because state lawmakers left something unresolved. It might trace back to election lawsuits pending in federal courts.

For all of the Austin talk about squabbles, brinksmanship and what critical issues might be left unresolved at the end of the legislative session, a couple of federal lawsuits actually could bring the Legislature back for special sessions: redistricting and voter ID.

It’s not likely to happen. But unlike state issues like the budget and taxes and handguns and highways, redistricting and voter ID involve the federal courts and lie outside the control of state leaders — whether those leaders are fussing or getting along with one another.

The state’s voter ID law — which requires you to prove with a specified photo ID that you are who you say you are when you’re voting — is being challenged as a mechanism that suppresses voting, particularly among minorities. The latest round in that litigation is on this week’s menu for the U.S. 5th Circuit Court of Appeals in New Orleans. If the state ultimately loses the case, the Republican leaders and lawmakers who created the requirement might want to come back with another version tailored to the courts’ satisfaction. A second “if” is this: The people who want a voter ID law want it when elections are held, and an adverse ruling before the 2016 elections might prompt them to call a special session before that year’s ballots are cast.

Redistricting is a little more straightforward. Texas is still defending its political maps for congressional and state House seats in federal court. (The legal fight over Senate seats ended last year.) Court-ordered changes in the maps, if they’re upsetting to the people in charge, could prompt Gov. Greg Abbott to bring lawmakers back to draw new maps of their own.

Special sessions are nearly always a sign of a big emergency or a big legislative belly flop. Emergency can mean anything from a cattle disease (brucellosis, in 1983) to whatever court ruling has been visited upon the state government (school finance, over and over and over).

Governors regularly tack on whatever subjects they please, because lawmakers have to be here for the main event. Two years ago, then-Gov. Rick Perry brought the Legislature back to work on redistricting maps — the same ones the state is currently defending in court — and tacked on transportation, capital crime penalties for 17-year-olds and regulation of abortion. The first issue arguably forced the special session, but it was that last one that made news, when then-Sen. Wendy Davis, D-Fort Worth, filibustered in an attempt to kill that abortion legislation. Perry brought lawmakers back for a second session and then, when they couldn’t complete their transportation work, for a short third one with only one subject.

In his 14 years in office, Perry called 12 special sessions. Ann Richards called four. Mark White called lawmakers back five times, and Bill Clements, who served before and after White, called three in his first term and eight in his second. George W. Bush served for a term and a half before becoming president; he never called a single special session. 

Abbott, who has been in office for less than four months, could choose not to call any special sessions; even a ruling against the state on either of those election law cases would leave it to him whether to call lawmakers back.

Only five weeks of the current regular session remain. The legislative bottleneck begins to narrow in just two weeks. It’s normal for lobbyists and lawmakers to be predicting widespread failure at this juncture.

The House and Senate have quarreled over details of legislation and about how each is treating the other’s work; that boiled over last week with a breakfast spat between the state’s top three leaders. Not to excuse anyone, but that contretemps was not unusual.

The most obvious potential cause for a special session would be the state budget, particularly if House-Senate differences over which taxes the state might cut hold up the appropriations bill. That would go into the category of special sessions caused by belly flops. The last time a budget was written in a special session was in 1991, when a new slate of state officials faced a huge budget shortfall and needed time to patch together a new state lottery, money-saving performance reviews and tax increases to make the numbers work.

They did redistricting that summer, too. It wasn’t optional.