SACRAMENTO, Calif. (AP) — The California Assembly changed its rules on Monday to let lawmakers at high risk for the coronavirus vote on bills without being present in the chamber, defying advice from the Legislature's own lawyers who say the new rule is likely illegal.
It's the first time in the state Assembly's 170-year history that absent lawmakers will be allowed to vote on bills. Assembly leaders say the rule is necessary to protect the health and safety of its members after a coronavirus outbreak last month infected at least six people who work there. One of two lawmakers to get sick was briefly hospitalized.
But critics warn legal challenges could cancel any bills the Legislature passes over the next month as they rush to finish a pandemic-shortened session.
"The votes on that board do not belong to us, they belong to the public," Republican Assemblyman Kevin Kiley said. "We are mere stand-ins. That requires us to actually 'stand in.' And if we don't, then the entire concept of representative democracy breaks down."
Assembly leaders had resisted calls for remote voting, with Speaker Anthony Rendon's office saying back in March there were "practical and constitutional obstacles" to lawmakers voting on bills without being physically present.
But since then, the state Legislature lost nearly three months of work over coronavirus concerns. With lawmakers facing an Aug. 31 deadline to pass bills, the state Assembly voted 48-10 on Monday to let lawmakers send their votes to the chief clerk by at least 5 p.m. the day before a vote. On the day of the vote, one of four legislative leaders would formally cast the vote on behalf of the absent lawmaker.
Assembly Majority Leader Ian Calderon said he expects absent lawmakers to watch the debate remotely. If lawmakers want to change their vote during the debate, they can send an email to a "special email address" monitored by the chief clerk. Proxy votes cannot be changed once they are announced.
The Office of Legislative Counsel, which provides confidential legal advice to the Legislature, wrote in a letter dated May 11 that remote legislating "runs counter to how deliberative bodies have historically been understood to operate," noting that the legislative process is "inherently dependent on the natural give-and-take of debate." The opinion said "legislating remotely arguably violates the constitutional guarantee of open and public meetings."
Oregon and Wisconsin, however, allow remote voting or virtual meeting of the legislature if emergencies exist, according to the National Conference of State Legislatures.
Diane F. Boyer-Vine, the lawyer who wrote the opinion, noted there are good arguments for remote access "on a temporary emergency basis," noting the state Legislature voted in 1862 to temporarily move its proceedings to San Francisco while Sacramento was flooded. However, Boyer-Vine wrote the Legislative Counsel's Office is "simply not confident" the Legislature would prevail in court.
Opinions from the Legislative Counsel's Office are confidential and are only released to lawmakers who request them. Republican state Sen. Brian Jones publicly released the opinion on Monday in an effort to convince the state Assembly not to change rules.
It's unclear if Assembly leaders saw the opinion before writing the new rules. A statement from Assembly Speaker Anthony Rendon noted the Legislative Counsel's office "has been consulted on this multiple times."
"The fact that this opinion presents arguments on multiple issues and vantage points reflects the complexity of this issue," Rendon said. "We continue to work through these extraordinary times to do the work the public has entrusted us to do within the provisions of the California Constitution."
The California Senate changed its rules in March to allow members to vote remotely during an emergency, but so far no one has. Senate President Pro Tempore Toni Atkins said legislative leaders have consulted the Legislative Counsel and open government groups that "has helped shape the actions we have taken."
"Neither this kind of emergency or the technological responses available could have been contemplated when the (state) Constitution was drafted," Atkins said. "But the Constitution did contemplate and direct that each house adopt rules to govern its proceedings, as we have."
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