These are the questions Branch raised in an earlier letter to caucus chair Larry Taylor and repeated in a letter dated yesterday. My comments appear in italics.
--- Would a caucus meeting to produce even a “non-binding” Speaker resolution violate the constitutionally defined process for choosing a Speaker?
I don't see how it could violate the constitutionally defined process. Action by the caucus cannot override the constituion. The caucus can hold a popularity contest, but the constitution says, "The House of Representatives shall, when it first assembles, organize temporarily, and thereupon proceed to the election of a speaker from its own members ...." A caucus meeting that excludes one party does not qualify as "organizing temporarily," because it is not the whole House that is assembling.
--- Does the sheer size of the Caucus ignite open records and meetings issues? If they all show up at a caucus meeting, the 101 members of the House Republican caucus now constitute a quorum of the Texas House.
Even if 101 members show up at the caucus meeting, it would not violate open records and open meetings requirements. Why? Because a meeting on January 10 occurs before members are actually sworn in on January 11. Members can't violate the rules if they aren't members yet. Only members who have been sworn in, such as John Kuempel and Van Taylor, qualify as members.
--- The Caucus bylaws appear to conflict over whether newly elected members, special-election elected members and party switchers should be included.
It doesn't matter. The caucus can't change the process for electing the speaker.
--- Could such a meeting violate Speaker statutes as well as administrative law and expose members to civil or criminal investigation? While some aspects of the Speaker statute related to spending by outside groups to advocate a candidate were overturned in federal court, other key provisions remain in force.
Holding a nonbinding vote for speaker is not a conspiracy against the constitution. The more relevant question is whether there are rules in place for such a vote. Will the vote be by show of hands or secret ballot? Who decides? Will individual votes be released to the public? Who decides?
--- Could a process excluding Democrats provide fodder for the U.S. Department of Justice to reject maps on Voting Rights Act grounds? It’s been remarked upon before but it bears repeating that this will be the first redistricting process after the passage of the VRA where the DOJ is in a Democratic presidential administration.
The Republican caucus has every right to meet and to vote on who they prefer to be their speaker, but the result has no official status whatsoever. I can't envision the Civil Rights division of DOJ requiring preclearance of the caucus vote because Democrats weren't allowed to participate in a Republican caucus. Nor can I envision a circumstance in which DOJ rejects the House reapportionment map on Voting Rights Act grounds because Democrats weren't allowed to participate in a Republican caucus that took a vote that was not binding on the House.
The big question is whether the rules of the caucus are sufficient to establish a procedure for the vote. Among the questions that must be answered are (1) Who is eligible to vote? (2) What, if any, is the impact of the vote? (3) Are the rules clear about how to conduct the election? (4) If there is disagreement over any of these issues, who decides?
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