Last Week in the Legislature

By Kenneth Besserman
Director of Government Affairs and Special Counsel

September 7, 2021 

Special Session 2 – The Sequel (Part 3 Just Around the Corner)

The second special session of the 2021 Texas Legislature began just as the first special session ended – without a legislative quorum in the House and no ability to advance and pass the items on the governor’s call.

The House legislative walkout began during the first special session when Democratic representatives felt that the voting integrity legislation went too far in restricting access to the ballot box, made it too easy to overturn elections, contained provisions that might be seen as voter intimidation, and other restrictive measures. The Democrats walked out, thereby ending the first special session.

Governor Greg Abbott then immediately called a second special session on August 7, but that session also started without a quorum in the House, once again slowing down the legislative process.

While House Democrats were in Washington, D.C., they made their case to Congress and the Administration as to the importance of a federal voting rights act (the John Lewis Act and other federal proposals). The Texas Senate continued its work passing many of Abbott’s priorities and waiting on the House to establish a quorum.

A Quorum

Many House Democrats returned to Texas in mid-August (after some negotiating, threats of civil arrest, shuttle diplomacy, dueling press conferences, and lively social media banter and accusations) allowing Speaker of the House Dade Phelan to gavel in a quorum and officially enable the House to conduct business and pass legislation.

Abbott laid out a very aggressive legislative agenda in his call for the second special session. While not all of the items passed the legislature, many did over a very heated partisan debate in both the Senate and the House.

Most significantly, Senate Bill 1 – the voter integrity or voter suppression bill, depending on your views – passed and was signed by the governor on September 7. The legislation will ban 24-hour voting, add identification requirements for mail-in voting, and protect partisan poll watchers’ access to vote-counting stations and polling places. SB 1 has already been challenged in the courts and we will see a long legal case on this matter that might take years to resolve.

Other significant items that passed during the second special session include:

  • A further ban on critical race theory in secondary education;
  • Legislation that restored the vetoed appropriations of the legislature and legislative agencies;
  • Reform to the bail system;
  • A tripling of the funding for border security and a border wall;
  • A 13th check for retired teachers;
  • Restrictions on the use of abortion-inducing drugs accessible through the mail or delivery;
  • Continued virtual learning and funding for students during the pandemic;
  • And the banning of the storage and disposal of high-level radioactive waste.

While there were a number of items on the governor’s call that were not passed or addressed, most observers think that the governor had a good special session. There were a number of very controversial items that will engender much debate, litigation, and controversy for months and years to come.

The items that did not pass or that were not sufficiently debated – transgender children in high school sports, social media censorship, election audits – may be back in another special session later this year or next year.

The Most Partisan of Them All

But what is front and center before the legislature and the governor for the third special session will be redistricting. The final 2020 Census numbers were supplied to the states in August, thereby allowing state legislatures (or redistricting commissions) to begin the process of drawing Congressional maps and state legislative maps.

The Texas Census numbers showed a marked increase in the minority population in Texas and a large increase in the population of the major metropolitan areas (Houston, Dallas, Austin and San Antonio). Initially, this may mean that there will be more legislative seats centered in urban areas, further diluting the rural vote in Texas. Those rural seats will increase in size to accommodate more of the population shift to the major cities.

The inside Capitol talk is that a special session addressing redistricting could start as early as late September or early October. While the Republicans have the upper hand in their ability to draw maps in the legislature, there will be enormous political and legal pressure to increase the diversity of legislative seats because of the new demographics in Texas.

While we do not know what maps or districts will look like yet, what we do know is that court battles will occur and drag on for years and years. This could mean a delay in the 2022 primaries or it could mean that the courts allow the current districts to remain in place while the courts rule on the legality of electoral maps.

It has been one very hot political summer. It will only get hotter as the most partisan issue of them all – redistricting – gets center stage. Stay tuned to Last Week in the Legislature for regular redistricting updates.

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