Assembly leaders fear remote voting could lead to laws being overturned

A debate over the California Legislature voting remotely in the coronavirus era isn’t just about public health — it also reflects a fear that voting from afar could lead to laws being invalidated.

Both the Assembly and the Senate are poised to resume a stalled legislative session in May, two months after the burgeoning coronavirus pandemic compelled lawmakers to adjourn early and subsequently extend the recess.

But with the state still under a stay-at-home order intended to stymie the virus by discouraging social contact, leaders in the two houses have reached divergent conclusions about the balance between public health and constitutional obligations. The Senate has voted to allow remote voting; the Assembly has concluded that the California Constitution may require physical in-person voting.

Some lawmakers have balked at the risk of infection, especially for members in the highest-risk categories, and signed onto a letter from 73-year-old Assemblyman Bill Quirk (D-Hayward) highlighting those concerns. But Assembly Speaker Anthony Rendon’s office is thinking about a different type of risk: the possibility of a lawsuit charging that remote votes violate the Constitution. If such a challenge were filed and prevailed, Rendon’s office reasons, laws passed remotely could be thrown out.

The Office of Legislative Counsel declined a request to detail the constitutional analysis lawyers have provided to the Legislature, citing attorney-client privilege. But notes from a meeting of chiefs of staff, shared with POLITICO, lay out the worry that “any bills passed using remote voting could be in legal jeopardy,” noting both constitutional and statutory open meeting and quorum requirements and precedent that included the Senate maintaining public access last year, despite the health risk of a protester hurling blood.

“Groups on the losing end of budget cuts could trigger lawsuits based on violation of open meetings,” the notes warn, and “political rivals” could “try to invalidate laws” or “tie them up in court” based on public access requirements.

Assembly leaders have been devising ways to protect members in person. When the Assembly returns to the Capitol next week, committees that would normally meet in smaller hearing rooms will convene in the Assembly chambers. Public seating will be limited, and bills could be referred to fewer committees to limit the number of hearings. Members of the public, advocates and experts will likely have video conference options to testify remotely.

Senate leaders have arrived at a different conclusion than Rendon’s office. Senate President Pro Tem Toni Atkins’ office has not conclusively decided on the potential mix of in-person and remote voting, Atkins has declined to rule out remote voting in part because of concerns that requiring in-person participation could exclude members who are older or have health risks — and thus disenfranchise their constituents.

The Senate has passed a resolution specifically altering house rules to allow for remote voting. Atkins’ office believes that resolution, along with livestreaming hearings and allowing a mix of telephonic access and some in-person public and press participation, has them on safe legal ground. Hearings could involve enough physically present senators to establish a quorum while more vulnerable senators participate from afar.

If the Senate votes remotely, however, it would seemingly render moot efforts by the Assembly to legally inoculate itself with in-person proceedings. In the bicameral Legislature, bills must be approved by both houses, so any Assembly bill would still have to go to the Senate for approval, possibly in a remote situation.

A 2016 government transparency ballot initiative, Proposition 54, inserted additional requirements into California’s constitution. Among them was language establishing the public’s “right to attend open and public proceedings” — a clause that could sustain a legal challenge.

Charles Munger, the prominent Republican donor who championed the proposition, said in an interview with POLITICO that he and other supporters had not contemplated the possibility of “what should happen to the Legislature if we have a plague” that shutters public life. Munger said remote voting would not necessarily undermine the legal obligations imposed by Proposition 54, which demands that legislative proceedings are recorded and that bill language is in print for 72 hours before votes.

“It’s not our intent with Prop. 54 to make transparency something that kills legislators,” Munger said, but he acknowledged the legal uncertainty of the Legislature’s unprecedented situation: “This sounds like an issue that could wind up at the California Supreme Court at some point,” he said, and whatever route lawmakers pursue, “Someone may file a lawsuit saying ‘It’s new and I don’t think it comports with the California Constitution.’”

Legislative leaders could inoculate themselves against a potential court challenge if they “adhere scrupulously to everything required by the Constitution” and “make the minimum changes necessary” to existing processes, Munger said, which would include ensuring the public can follow proceedings and not limiting public debate.