Remote Voting by the Legislature should be Narrowly Framed

Loren Kaye
President of the California Foundation for Commerce and Education

Most of us have logged onto a Zoom call or Teams meeting or Facebook happy hour. But what about remote voting – by the Legislature, anyway?

What would have seemed absurd in January is now under serious consideration: a proposal to enshrine in the State Constitution protocols for Senators and Assembly Members to vote on legislation while dispersed and sheltering remotely. 

Such a radical change in the exercise of democracy potentially clashes with California’s venerable traditions of transparent and accessible government, reflected in our open meetings and open records laws. On the other hand, the pandemic has demonstrated that even the most cherished of our liberties, like assembling for protests or religious services, can be temporarily subordinated to urgent imperative to protect public health.

The culture of the legislative branch, “the People’s Body,” should enshrine a bias toward access and accountability, even as individual members may sometimes find the opposite to be more convenient. Therefore, exceptions to congregated voting within the chambers of the Legislature should be narrowly drawn to address the problem at hand. But as introduced, the proposed constitutional amendment misses this benchmark. 

First, the condition triggering remote voting is too broad. A “state of emergency declared by the President or Governor” provides too minimal a cause for pulling this trigger. Infamously, Presidents and Governors declare frequent states of emergency for California. Fires, floods, freezes, earthquakes, crop infestations, windstorms, civil disturbances, and drought are but a few examples of emergency conditions. Most of the declarations affect one or a handful of counties; many are the consequence of a single, terrible, time-limited event. Few comprise the entire state. And fewer still – Covid-19 is unique – prevent lawful congregation, broadly inhibit travel, or threaten the health and safety of individuals convening at the State Capitol from the four corners of the state. Even a rash of wildfires or a freeze affecting numerous counties does not prevent the healthful assembly of the Legislature. 

The only condition to trigger remote voting should be a state of emergency declared for the entire state where travel or close gathering threatens the health or safety of members of the Legislature and the public.

Second, while the proposal relieves members from gathering in the Capitol, it does not provide from where a member should vote. In the interest of accountability, a sheltering legislator if not in the Capitol should vote from his or her district, and should be required to advise the public how to communicate with the member.

Third, the proposed amendment provides that the Legislature may temporarily fill vacated offices with pro tempore members, “in the event that one-fifth or more of the Members of a house are deceased, disabled, or missing during a state of emergency.” While this condition is horrific, nonetheless this new power is a dangerous and unnecessary infringement on the expressed will of the constituencies of the departed members. The work of the Legislature would be inhibited by operating at eighty percent strength, but temporary inefficiency would be far preferable to the controversy and temptation to pad majorities should an Assembly or Senate caucus be awarded the bounty of appointing 16 or eight members, respectively.

Finally, the proposal to allow the suspension of the recently-adopted mandate to electronically record meetings and voting in the case of “impracticality” during an emergency suffers from a lack of faith in our recording technology. If a secure electronic or digital connection can be established to consummate a vote, then the same can be accomplished to record the debate and the vote for public consumption. Voting and accountability should be insuperable; the Legislature should not countenance backsliding on this.

Members of the Legislature deserve credit for imagining how to conclude the People’s business while keeping their members, staff and the public safe – and for placing the question before voters, rather than asserting their ability to vote remotely. But this laudable goal should be accomplished with the least potential violation of the public’s access to their elected officials and to the democratic process.

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