Can Texas Democrats be forced back to the Austin Capitol? Recent walkouts didn't result in arrests

WASHINGTON – Shortly after becoming Texas' solicitor general in 2003, Ted Cruz was asked by his boss to research the legality of arresting dozens of Democratic lawmakers who fled the capital of Austin to prevent the Legislature from taking up redistricting legislation.

The answer, Cruz concluded, was emphatically yes – pointing to a provision in the state constitution modeled after the U.S. Constitution. Now a U.S. senator representing Texas, the Republican stood by that opinion Tuesday.

"There is clear legal authority to (arrest) legislators that are trying to stop the Legislature from being able to do business and to physically compel their presence and to ensure a quorum," Cruz told USA TODAY.

Cruz's boss at the time? Greg Abbott, then the GOP attorney general of Texas and now the governor. It was Abbott who threatened this week to arrest a group of Texas Democratic lawmakers who fled to Washington, D.C., in a similar effort to deny the GOP-controlled legislature the quorum needed to pass bills that would impose new voting restrictions in the state.

The Texas House voted Tuesday to send for the Democrats who left the state for Washington in a dramatic move intended to block the passage of a GOP elections bill – authorizing the use of arrest warrants if needed to compel attendance.

The short-term problem for Texas Republicans is that Democrats have left the state and, therefore, curtailed Abbott's authority to have them arrested because Texas officials have no authority to arrest or detain people beyond state lines. He'll have to wait for their return if he wants to punish them, though House rules authorize the sergeant-at-arms "to locate absent members of the committee and to compel their attendance."

The Lone Star State is only the latest example over the past 20 years where lawmakers in the minority party have felt so strongly about an issue, they believe leaving the state is the only choice they have.

Walkouts took place four times in Oregon, including each of the last three years when frustrated Republicans decided leaving was their best weapon to fighting climate change legislation (2019, 2020) and COVID-19 restrictions (2021).

It happened in Indiana in 2011 and in 2012 when pro-union Democrats walked out to prevent right-to-work legislation from moving forward. The bill was delayed but ultimately approved by the GOP-controlled legislature.

More: Can Texas Democrats be arrested for fleeing the state? What does it mean for the special session?

And it happened in Wisconsin, also in 2011, over similar right-to-work legislation Democrats staunchly opposed.

Breaking quorum is usually only an option for minority party members in the handful of states with a "supermajority quorum standard" such as the requirement in Texas that two-thirds of legislators be present to vote on bills, Peverill Squire, a University of Missouri political scientist and expert on the rules of state legislatures, told USA TODAY in an email Tuesday.

"Usually, the minority only employs the tactic when they are seeking to defeat a high-profile, controversial issue," he wrote. "There is no guarantee that the minority will be able to stave off the majority party over the long haul, but they can make the process more difficult and raise the political stakes."

The strategy of walkouts has garnered mixed results.

The 2020 walkout by GOP lawmakers in Oregon led to Democratic Gov. Kate Brown issuing an executive order that her staff said accomplished much of what the proposed cap-and-trade bill would have done to reduce carbon emissions. The Indiana stand-off in 2011 led to the GOP removing three of 12 disputed bills.

More: 'It's a game of chicken': Texas Democrats' walkout has precedent, but will it work?

And the 2003 walkout that was the subject of Cruz's research succeeded in delaying – though not denying – the redistricting measure. It ended after 43 days when one of the Democratic senators returned to the state from New Mexico, giving the GOP the quorum it needed to proceed.

As far as punishment, most of the walkouts ended without arrest.

More: Oregon Republicans return to Senate floor after walkout, but it's too late

Then-Gov. Mitch Daniels in Indiana did not order the arrest of the Democratic legislators who sought refuge in neighboring Illinois because he feared it might hurt the rest of his legislative agenda in 2011. Brown sent Oregon troopers to arrest the GOP lawmakers in 2019 but many of them fled the state and avoided arrest.

Most lawmakers who walked out faced fines rather than handcuffs. Texas Republicans eventually rescinded the fines they imposed on the condition that the Democratic lawmakers not leave again.

Abbott, who ordered lawmakers back for a special legislative session to pass the elections bill and other GOP priorities, accused Democratic members this week of "abandoning" the state Capitol and leaving work unfinished.

"The Democrats must put aside partisan political games and get back to the job they were elected to do," he said in a statement. "Their constituents must not be denied these important resources simply because their elected representative refused to show up to work."

But Minnesota Democratic Sen. Amy Klobuchar hailed the group as heroes while casting the Texas Republicans as villains.

“I wish they would be spending this much time making it easier for people to vote than they are going after their colleagues," she said. "These legislators are here as freedom fighters. They have come to the place where they're supposed to get salvation."

Klobuchar, who chairs the Senate Rules Committee, is holding a hearing Monday in Georgia to examine many of the same voting rights issues that are the subject of the proposed Texas restrictions. She said it only make sense that Democrats who feel helpless to stop what's happening in their states would come to the nation's capital for help.

"I think the best analogy is in the 1960s when there was a concerted effort to suppress people's right to vote, and the federal government responded, or when there was concerted efforts to discriminate on housing and on education. It was the federal government that responded," she said. "And that's all they're asking for now and that's why they're here."

Contributing: Madlin Mekelburg, Austin American-Statesman

This article originally appeared on USA TODAY: Texas Democrats walk out: lawmaker boycotts haven't resulted in arrest