Perhaps all Californians can agree, after more than three months of living under a state of emergency that has devastated the state’s economy and treasury, that state constitutional provisions regarding emergency powers need a few tweaks.
Unfortunately, a proposed state constitutional amendment now under consideration in the Legislature would worsen what we have already seen is the risk of unaccountable and secretive government overreach in an emergency.
Assembly Constitutional Amendment 25, authored by Speaker Pro Tem Kevin Mullin, D-San Mateo, would allow remote voting by lawmakers during a state of emergency and proxy voting if the state of emergency prevents the member from “safely attending the proceeding in person.”
Further, the measure would change the rules for a quorum. If one-fifth or more of the members of the Senate or Assembly could not attend because they are deceased, disabled or “missing,” bills could be passed by a simple majority of those members able to attend.
Because the terms “emergency” and “missing” are not narrowly defined, there is a concerning vulnerability to abusive practices. “State of emergency” is said to mean “the existence of conditions of disaster or of extreme peril to the safety of persons and property within the State, or parts thereof.” That covers a lot of ground, from the fear of a possible global pandemic to a local flood. “Missing” could mean anything from lost in a natural disaster to visiting another state to get a haircut.
ACA 25 was prompted by legislative pique that Gov. Gavin Newsom was issuing dozens of executive orders during the coronavirus state of emergency and signing contracts that committed the state to hundreds of millions of dollars in spending, with no transparency or legislative oversight. These are valid concerns.
It certainly makes sense to allow lawmakers to vote remotely during an emergency when travel to the state Capitol in Sacramento may be difficult or impossible. Proxy voting is more problematic. The constituents of an elected representative have the right to expect that their interests will be actively represented by the person they elected, not by a person designated to cast votes on behalf of their representatives.
A form of unofficial proxy voting has caused problems before. Tim Anaya of Pacific Research Institute pointed out that in the Assembly, lawmakers sometimes reach over and press the voting button for a seatmate who is away from the desk, a practice that draws little attention unless the vote is cast in opposition to that member’s position on a bill. In 2008, the San Francisco Chronicle reported that then-Assemblyman Kevin de Leon cast such a contrary “ghost” vote for Assemblywoman Mary Hayashi.
It’s not difficult to imagine that with a long list of bills to consider, the chaos of remote and proxy voting would decrease transparency to the point that the public was unable to determine what legislation was being passed and whether their representative supported or opposed it.
Any constitutional amendment revising emergency powers should include protections against abuse, including a precise definition of when an emergency has ended.
ACA 25 has already passed the Assembly and is under consideration in the Senate, where it would need a two-thirds vote to be placed on the ballot for voter approval. Lawmakers should slow down and consider more fully how best to revise emergency powers to maintain the operations of government during a disaster.