[EL] State-level continuity of governance-

Mon Mar 23 18:52:39 PDT 2020

cross-posted to Legislation listserv

Remote voting by legislators raises several questions that require careful
consideration of the long-term consequences -- I have spent the past few
days thinking about this for Texas. Daniel Schuman of Demand Progress (who
has an excellent weekly round-up e-mail titled First Branch Forecast) has
made some recommendations and some of my more relevant thoughts follow
those recommendations below. This is by no means an exhaustive list of all
the considerations that go in to remote proceedings of a legislature.

*"Amend their rules to deem legislators to be present if they are present
via electronic means, such as by video-conference."
*" Provide for a skeleton staff in the Capitol complex in circumstances
where Constitutional rules require in-person presence at the seat of
government."
This would require a constitutional amendment in Texas. No fair reading of
the state constitution would permit the legislature to do this by rule
because it requires the legislature to hold its sessions in Austin and only
permits suspension of this requirement during an enemy attack or the
imminent threat of one. The constitutional language requiring a quorum
plainly contemplates the physical presence of a quorum. For the Congress,
Schuman looks to U.S. v. Ballin (1892) as authority for the proposition
that either House may count electronic "presence" as a physical presence.
Ballin examined Speaker Reed's breaking of the silent quorum -- that is, a
quorum was physically present but a minority sufficient to cause the lack
of a quorum refused to answer the roll call and the Speaker directed the
clerk to enter the names of the silent members as required under the House
rules. The Court *did not* hold that members not present could be counted
as part of a quorum.
-->If more than a majority of the members participate electronically, they
could deprive the House of a quorum simply by logging off. How would the
House execute a call on those absent electronically, especially if they are
in their home districts? How would the House maintain a call if ordered
before the disappearance of a quorum?
-->Unlike the Congress, where much of the business is highly scripted, the
floor in Texas is still a place where a good speech and a carefully drawn
amendment can pass or defeat a bill. There are practically no special rules
governing the consideration of bills. How can members participate in a
debate electronically? How will they read the room? How can they work for
or against a bill? This would require a major change in business and I'm
not sure it would improve legislative deliberations.
-->Who determines who stays in the Capitol complex in a state where the
Legislature is not organized by party? How do you replace those people if
they get sick?

*"Permit the counting of votes cast by members present via electronic
means." Schuman suggests live roll-calls with members voting when their
name is called. In Texas, any member can demand a roll call vote under the
House Rules and any three can demand a vote under the state constitution if
the House rule is repealed. This could gum up the works quickly. It might
be possible to deploy the chamber vote software remotely, but then you have
problems with who is voting -- could staff, family, or lobbyists somehow
vote for the member remotely? How would you verify a vote, as we do when a
vote is close? In 1991, a member died in his apartment on a Saturday
afternoon, but he "voted" on every bill into the evening.

Provide for these amendments or suspension of chamber rules to be in effect
only upon the declaration of legislative leadership; be in effect only for
a limited time, such as 30 days; and be renewable by a vote of the
legislative body as remotely assembled.
As far as this goes, okay. However, you probably need to tie the initial
declaration to a third-party declaration such as the governor or the
president to avoid gamesmanship.

*Purchase and provide equipment to all members of the chamber and provide
video-conference software to committee and chamber clerks.
This is doable especially where the state has already issued equipment to
every member, officer, and committee staff.

*Ensure live-streaming of all official proceedings and press access to the
Capitol complex.
I think the issue here is bandwidth -- if citizens and lobbyists can't
access the building, then you are going to have a lot of demand for the
streaming video, especially if you are running 10-15 committee hearings
simultaneously as happens here. Permitting witnesses to testify by video
conference presents some challenges, especially to prevent astroturf
witness registrations.

On Sun, Mar 15, 2020 at 4:27 PM Jeff Wice <jmwice at gmail.com> wrote:

> The National Conference of State Legislature's (NCSL) website is posting
> information on what state  governments are doing on the shutdowns and
> emergency measures. About 15 state legislatures have already suspended or
> delayed sessions. The website can be accessed via www.ncsl.org or
> NCSL Coronavirus (COVID-19) Resources
> <https://share.polymail.io/v1/z/b/NWU2ZTljOWVhMGFl/s4dBQpSrMVfFYqbI_NNIGRwDqvMEPeZyIlOkqer9uBCpiRzijtpmAnPsIyweKoYI8BJ2_17KFk7Y9HfWy8tZkdift-X7o93DqF4lwn27QsZmS2tdkqpOFdf0nxDA0wYrX6qrjPFfXcL5CeqLHcnD8Gxjasaosq7V_MDcIZLLI3G-21SjbiAf1LGbUZabFLa3nemkGuw_FyZyCeClYWC4yaoMb6GAWJOhsL1FBEojmRvyBZxd-8YrU2Lz4MXl>
> The spread of the coronavirus continues to be a top concern and, while the
> federal government leads the national response to COVID-19, state lawmakers
> are taking extra steps to respond to and anticipate impacts of the virus.
> NCSL is committed to providing our members with timely responses to state
> research requests and the essential knowledge needed to guide state action.
> This page is updated daily to reflect new resources in policy areas ranging
> from education to health care costs and access.
> <https://share.polymail.io/v1/z/b/NWU2ZTljOWVhMGFl/s4dBQpSrMVfFYqbI_NNIGRwDqvMEPeZyIlOkqer9uBCpiRzijtpmAnPsIyweKoYI8BJ2_17KFk7Y9HfWy8tZkdift-X7o93DqF4lwn27QsZmS2tdkqpOFdf0nxDA0wYrX6qrjPFfXcL5CeqLHcnD8Gxjasaosq7V_MDcIZLLI3G-21SjbiAf1LGbUZabFLa3nemkGuw_FyZyCeClYWC4yaoMb6GAWJOhsL1FBEojmRvyBZxd-8YrU2Lz4MXl>
> WWW.NCSL.ORG
> <https://share.polymail.io/v1/z/b/NWU2ZTljOWVhMGFl/s4dBQpSrMVfFYqbI_NNIGRwDqvMEPeZyIlOkqer9uBCpiRzijtpmAnPsIyweKoYI8BJ2_17KFk7Y9HfWy8tZkdift-X7o93DqF4lwn27QsZmS2tdkqpOFdf0nxDA0wYrX6qrjPFfXcL5CeqLHcnD8Gxjasaosq7V_MDcIZLLI3G-21SjbiAf1LGbUZabFLa3nemkGuw_FyZyCeClYWC4yaoMb6GAWJOhsL1FBEojmRvyBZxd-8YrU2Lz4MXl>
> <https://share.polymail.io/v1/z/b/NWU2ZTljOWVhMGFl/s4dBQpSrMVfFYqbI_NNIGRwDqvMEPeZyIlOkqer9uBCpiRzijtpmAnPsIyweKoYI8BJ2_17KFk7Y9HfWy8tZkdift-X7o93DqF4lwn27QsZmS2tdkqpOFdf0nxDA0wYrX6qrjPFfXcL5CeqLHcnD8Gxjasaosq7V_MDcIZLLI3G-21SjbiAf1LGbUZabFLa3nemkGuw_FyZyCeClYWC4yaoMb6GAWJOhsL1FBEojmRvyBZxd-8YrU2Lz4MXl>
>
> I'll update the listserv on NCSL's activities regarding election law and
> state law/process changes as soon as I have the information.
>
> Jeff Wice
>
> Sent from Polymail
> <https://share.polymail.io/v1/z/b/NWU2ZTljOWVhMGFl/s4dBQpSrMVfFYqbI_NNIGRwDqvMEPeZyIlOkqer9uBCpiRzijtpmAnPsIyweKoYI8BJ2_17KFk7Y9HfWy8tZkdift-X7o93DqF4lwn27QsZmS2tdkqpOFdf0nxDA0wYrX6qrjPFfXcL-EfHcHsvZ8Gxld464tb_LxtLBN4iHLimv2EyyLC8Vy_vDRpS2Fr2ygvW7Uu13Eix2EuXkdizh1pAcYbmCWp-18OFFHVVm9PMFYZElJO2YVh-V-x7CJ62AAc8R>
>
> On Sun, Mar 15th, 2020 at 12:29 PM, Rob Richie <rr at fairvote.org> wrote:
>
>> I am surprised by the silence on David's very reasonable query.
>>
>> AEI's Norm Onstein has addressed the issue of continuity of governance
>> with important thinking and reports for years. He had this piece in the
>> Atlantic
>> <https://www.theatlantic.com/ideas/archive/2020/03/congress-needs-contingency-plan-right-now/607933/>a
>> couple days addressing this issue through the lens of Congress. It
>> includes: "There is no plan in place for Congress to hold remote meetings
>> or otherwise conduct its business if it becomes impossible for its members
>> to meet together, face to face in the Capitol or at another site in the
>> District of Columbia. And that needs to change, right now."
>>
>> I'm wondering if anyone might know what other nations are doing with this
>> challenge as well.
>>
>> Rob
>>
>>
>> Rob
>>
>> On Sat, Mar 14, 2020 at 10:34 PM David Segal <david at demandprogress.org>
>> wrote:
>>
>> Two NY lawmakers just tested positive. This is all about to spiral.
>>
>> https://www.nytimes.com/2020/03/14/nyregion/coronavirus-ny.html
>>
>> On Sat, Mar 14, 2020 at 8:39 PM David Segal <david at demandprogress.org>
>> wrote:
>>
>> Hi, everybody-
>>
>> One thing I'm trying to sound the alarm about:
>>
>> Many, or perhaps most, state legislatures have no contingencies in place
>> to allow for things like remote voting by lawmakers.
>>
>> This could be disastrous, as it will be harder and harder to get quorums
>> to meet in person. And such meetings will be necessary to pass things like
>> budgets -- *and changes to voting laws to help make sure that elections
>> take place at scale and with integrity. *
>>
>> I'd urge anybody who has contacts with state officials to raise this
>> issue with them ASAP so they can seek to make changes to their own
>> procedures to allow for continuity of governance. It's disconcerting, but
>> not shocking, that there's been almost no thought put into this here in RI.
>>
>> (This is also a concern for Congress, but I know they are at least
>> thinking about it now.)
>>
>> -David
>>
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>>
>>
>> --
>> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>> Rob Richie
>> President and CEO, FairVote
>> 6930 Carroll Avenue, Suite 240
>> Takoma Park, MD 20912
>> rr at fairvote.org  (301) 270-4616  http://www.fairvote.org
>> *FairVote Facebook <https://www.facebook.com/FairVoteReform>*   *FairVote
>> Twitter <https://twitter.com/fairvote>*   My Twitter
>> <https://twitter.com/rob_richie>
>>
>> Thank you for considering a *donation
>> <http://www.fairvote.org/donate>. Enjoy our video on ranked choice voting
>> <https://youtu.be/CIz_nzP-W_c>!*
>>
>
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-- 
Hugh L. Brady
T (512) 289-0535 | F (512) 857-1016
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