Does California law allow lawmakers to vote from home? Top Democrats are divided

In the California Capitol, the Senate and Assembly traditionally operate under similar rules, but not when it comes to the coronavirus.

Lawmakers from both houses left the Capitol last month because of the coronavirus outbreak. They passed a measure allowing Gov. Gavin Newsom to spend $1.1 billion to fight the virus, and put their legislative session on hiatus.

Since then, the two chambers have set different dates for when they expect lawmakers to return to the Capitol. The Assembly reconvenes on Monday; the Senate is waiting one more week and returning on May 11.

And, even though they share the same attorneys, the Assembly and Senate came to different decisions on whether remote voting is allowed by the state’s constitution.

The Assembly concluded remote voting could be unconstitutional, potentially exposing the Legislature to open meeting violations and leaving laws vulnerable to legal challenges.

“We were told that it was not something our attorney felt was constitutional,” said Assembly Speaker Anthony Rendon, D-Lakewood. “So we chose to follow that advice. (Remote participation) is a constitutional issue and it requires changes to the constitution, to state statute, joint rules and also our Assembly rules. It’s quite a process.”

The Senate, based on the same legal advice, passed an emergency resolution that allows senators to participate and vote remotely as long as a member convenes the meeting in-person at the Capitol.

Counsel for the Legislature did not return a request for an on-the-record interview.

Why Assembly says voting is safe

To avoid constitutional uncertainties, Rendon’s team developed a plan to ensure a safe return to the Capitol.

Anyone entering the building will get their temperature taken, he said, and only one person at a time is allowed in the elevators.

Remote testimony is encouraged during committee meetings, which will take place in three large hearing rooms. Those entering the building will exit through a separate entrance, to avoid cross traffic and congestion.

Members will need to limit themselves mostly to their offices, except for when they have committee obligations. Caucus meetings will be conducted remotely, Rendon said.

It’s a “pretty well thought-out plan” that’s been worked on for six to seven weeks, Rendon explained.

Neither house has had to vote on a bill since March 16, when the Legislature recessed.

Representatives for Senate President Pro Tempore Toni Atkins’ office said remote participation won’t jeopardize open meeting requirements. They said the Senate resolution allows lawmakers, who skew older, to advance legislative and district priorities from afar.

Atkins’ office said the Senate might not end up using remote voting. And if it does, members will be asked to submit written communication to the Senate Daily Journal, which keeps a record of legislative activity.

Rendon and Atkins have always had a strong working relationship, Rendon said. The current crisis, however, has shifted priorities from shared legislative visions to separate concerns. He said the first he’d heard about the Senate’s delayed return was when Atkins’ office issued a press release.

“It’s a weird dynamic because we’re not in the same building as we normally are,” Rendon said. “There’s more reasons to talk when you’re talking about legislation. The focus now has been on resources and referrals and relief efforts. We’ve communicated when we’ve needed to but I feel we have a different work product now than we normally do.”

What do lawmakers want?

Some lawmakers have shared concerns that working from the Capitol could expose members to personal health and safety risks.

During a recent Democratic caucus conference, Assemblywoman Shirley Weber, D-San Diego, expressed worry over carrying the virus back and forth from Sacramento to her district. She supported the idea that members get tested before reconvening to “ensure they are not contributing to the spread of COVID,” according to her office.

Members older than 65 and with pre-existing health conditions will be excused from session, Rendon said. But lawmakers in a recent letter asked Rendon to consider remote participation so members at-risk to severe COVID-19 infection can continue their work without being in the Capitol.

Others are more keen to return, knowing that this year’s bill and budgetary priorities will be among the most important decisions ever made by California lawmakers sent to Sacramento to advocate for their district.

“I want to do whatever public health officers think is prudent. And I want to get back to work,” said Assemblywoman Lorena Gonzalez, D-San Diego. “To go back up and fight for resources.”

This story was originally published April 30, 2020 at 4:50 AM.