McGeorge Adjunct Professor Chris Micheli

As a result of the COVID‑19 outbreak, numerous state legislatures around the country have been acting upon, or considering, measures to deal with their legislative operations, including issues like recesses, bill deadlines, and remote voting.

About half of the states so far have either temporarily adjourned, or recessed, their legislative sessions. There are some states across the country who do not meet this year, or who’ve already adjourned their session. California’s one of those states that has a constitutional requirement that specifies the consent of both houses of the Legislature ‑‑ that is, the Assembly and the Senate ‑‑ must adopt a resolution to recess. Specifically, the California Constitution provides that neither house may recess for more than 10 days without permission of the other.

At least eight states so far have been reviewing the use of electronic or remote meetings and votes during this pandemic going on. Most state constitutions that I’ve looked at require legislatures to meet in person and be open to the public. Oregon and Washington have specific provisions that allow remote or virtual meeting of the legislature, if there are certain emergencies that are existing. Likewise, Wisconsin has a constitutional provision that allows their legislature to adopt different measures in light of any sort of pandemic or natural disaster occurring.

The night that the California Legislature recessed, until April 13th, the State Senate adopted a new rule that only applies during statewide or local emergencies declared by the Governor. It allows the Senate President Pro Tem or their designee to:

  • change the composition of any of the standing committees of the Senate, and they can appoint members and staff to any special committees.
  • authorize any of these committees ‑‑ existing ones, or any special ones ‑‑ to conduct meetings by telephone or other electronic means.

It also authorizes during emergencies that the entire Senate can meet, and that one or more senators can participant in any meetings remotely, by telephone or any other electronic means, and provides that the public may participate remotely. It is worth noting that the California State Assembly did not adopt a similar rule.

It is also unclear whether the new rule is permissible under California’s Constitution. Article IV, Section 7 states that “The proceeding of each house, and the committee thereof, shall be open and public.”

If the Senate does resort to remote voting, and enacts any bills along those lines, the question then turns to whether or not some individual, or some group, would actually file a lawsuit to overturn such a statute for potentially violating Article 4 Section 7, or in fact whether any state courts would actually overturn a statute that were enacted under such a rule, considering the current circumstances.

You can find the full transcript of today’s podcast here.

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