Update: ACA 25 was pulled from the legislative process by the author’s office on June 18, 2020.
None of our work matters if we cannot participate in the legislative process.
Assembly Constitutional Amendment 25 (ACA 25) is a provision to allow for remote and proxy voting in case of an emergency. But ACA 25 was drafted quickly and lacks key specifications and protections to ensure that the democratic process is not compromised. Along with a coalition of organizations in the Green California and Building the California Dream Alliance, we oppose this bill unless amended.
Background and Requests of Advocates
Remote proceedings present significant obstacles to transparency and public engagement, two cornerstones for accountable democracy enshrined in our State Constitution. As such, remote participation should only be authorized in exceptional cases, when absolutely needed, and for only as long as needed. Unfortunately, ACA 25 falls below that standard and incorporates related provisions, like unconstrained proxy voting and pro tempore appointments, which could be abused in a manner that undermines representative democracy.
The decision to amend the constitution is a momentous one that it is crucial to get right, so we respectfully request the following amendments:
Remove or Limit Proxy Voting: ACA 25 authorizes either House to use proxy voting, which is left undefined. Proxy voting is harmful to representative democracy because it diminishes the deliberative process and weakens the electorate’s ability to hold their officials accountable for votes they did not personally take.
1.
ACA 25’s authorization for legislators to vote remotely should render proxy voting largely unnecessary. If it is absolutely crucial to provide a proxy voting option, ACA 25 should ensure that it is only done as a last resort and in a way that makes clear legislators’ intent regarding specific votes or actions, using similar safeguards to those recently enacted by the House of Representatives and other states like Arkansas.
As currently drafted, nothing in ACA 25 would stop rules allowing a single person, who is not even required to be a legislator, to act as proxy for as many legislators as desired while being given carte blanche to vote however the proxy wants on any item. Moreover, neither the proxies nor the legislators would be
accountable to voters, because the proxy wouldn’t share an electorate with the legislator for whom they placed votes, and the legislator would be able to tell their electorate they did not instruct their proxy as to how to vote.
If ACA 25 is not amended to remove proxy voting, we believe it needs to be amended so that it is (1) allowed only when a legislator is unable to vote remotely because of the emergency, (2) allows only other legislators to be designated as proxies, (3) allows proxies to vote as instructed only on specifically-designated bills or actions, and (4) requires the proxy authorization and vote instructions to be recorded. The record of roll-call votes should also clearly indicate when and how a member has voted by proxy.
2.
Specify Rules for Pro Tempore Appointments in Emergencies: In the catastrophic scenario where one-fifth of the members of a House are “deceased, disabled, or missing,” during a state of emergency, ACA 25 allows appointment of pro tempore members by a process to be determined by a majority-vote statute.
As unlikely as this situation will hopefully be, the openness of this provision invites abuse, which may be particularly tempting in an emergency situation. For example, in a future Legislature the majority party could pass a statute over the minority party’s objection allowing appointments of individuals that neither live in the district nor are even of the same party as the legislator they are replacing.
The simplest solution would be to incorporate provisions similar to Government Code Section 9004, which applies to pro tempore appointments during or following a war or enemy-caused disaster and states in relevant part:
“The appointments shall be so made that each assembly or senatorial district in which a vacancy exists shall be represented, if possible, by a pro tempore member who is a resident of that district and a registered elector of the same political party as of the date of the disaster as the last duly elected member from such district.”
The terms “disabled” and “missing” should also be more precisely defined or replaced with clearer terms, such as “incapacitated” and “presumed deceased.” Legislators with disabilities can and do cast votes on a regular basis. ACA 25 should not theoretically allow them to be replaced due to their being “disabled,” as may be implied to voters by the current language. And “missing” should be defined in a way that does not theoretically allow legislators to be replaced in circumstances where they are, for example, purposefully boycotting votes in protest as legislators have done in other states.
3.
Eliminate Quorum Reduction: ACA 25 automatically lowers the quorum requirement, and presumably the vote threshold to pass bills, to a majority of members “able to attend” when more than one-fifth of a House’s members have been incapacitated. However, a small minority of the state should not be able to make laws of permanent duration affecting the whole state. For example, if an earthquake hits Southern California and Los Angeles County’s 24 Assembly member delegation was missing, this provision would allow the Assembly to pass any majority vote bill with just 29 votes – none of them representing Los Angeles County.
Representational concerns aside, this provision is also unnecessary if the pro tempore appointment power is enacted, which would at least give representation to residents of those areas. This provision is not justified and we believe should be removed, or at a minimum narrowed to only apply to votes regarding the state of emergency.
4.
Ensure Remote Voting and Proxy Voting Transparency: ACA 25 does not require any approval of a member’s request to appear remotely or vote by proxy, any public findings of fact that the state of emergency prevents a particular member or members from safely attending the proceeding in person, or any notice to the public that such a request has been granted. Adding these basic requirements would provide a measure of public accountability to ensure that remote or proxy voting is truly necessary and not being abused as a matter of convenience or simply to avoid appearing in the Capitol. It should also be necessary that remote participation by a legislator occur in a public place or their district office, if possible, so that the public can both see and have access to their legislators, and to ensure that legislators are not influenced by the presence of lobbyists or others while they are conducting public business. This is consistent with current rules prohibiting lobbyists from being present on the floor of the chamber, as well as the Senate rule saying that to the extent practicable, a Senator participating remotely shall participate from the Senator’s district office. Finally, any remote technology employed should, so far as is possible, ensure that the public can not only view but participate in proceedings conducted by remote participation.
5.
Time-Limit Remote Voting and Proxy Voting: ACA 25 appropriately revokes the authority to vote remotely or by proxy once an emergency declaration has ended. However, some emergency declarations may last for years, and may extend well past the point when the Legislature, for reasons of health or safety, is no longer able to meet. We believe ACA 25 should be amended to end any authorization to vote remotely once a legislator is able to safely appear in person or automatically after 30 days, whichever is sooner, unless the authorization is extended for up to another 30 days by majority vote of the affected House. Periodic re-examination of the need for remote proceedings will help ensure they are used no longer than necessary.
And lastly, ACA 25 specifies that the Legislature (or each house) adopt rules by resolution. Because these rules are critical to ensuring accountability and access to the public, we also request an amendment to guarantee that the rules only be adopted after being heard in committee with opportunity for public comment.
Although ACA 25 is important to ensure that the Legislature can function during future pandemics or other emergencies, without these amendments there is a serious risk of these procedures being abused or used without transparency by future Legislatures at the worst possible times. Although we understand there is now a narrow window for placing measures on the ballot, we believe the Senate should have the opportunity to review and address issues with ACA 25 before agreeing to propose such an enduring and permanent change to California’s constitution without the necessary safeguards.