Remote voting is unconstitutional. Change my mind.

As a staffer for the Minnesota House Republican Caucus during the 1996 session, the first thing I did each session day was check the hand-written list of absentee members held down with scotch tape on the chief clerk’s desk. If two Democrats were on that list, I turned to my boss, House Minority Leader Steve Sviggum, and said, “They can’t pass a bill today.” Sviggum spread that message throughout the Republican caucus, and it set the tone for the day.

The Minnesota House was divided that session by two votes, 69-65. If two Democrats were absent, they could not pass a bill, since the Minnesota Constitution requires a majority vote of all members for passage. The absentee list dictated the agenda for the day. If Speaker of the House Phil Carruthers wanted to pass non-controversial or bipartisan bills, he could expect the cooperation of minority Republicans. But if he wanted to accomplish anything controversial, he had to wait for a day when Democrats were at full strength.

This stroll down memory lane is relevant because Democrats have a 34-33 majority in the Minnesota Senate this year, but no one cares about the daily absentee list. That’s because of Senate Rules 40.7 and 40.8.

40.7 During a special session, a peacetime public health emergency, or with the approval of the respective caucus leader, a member may vote on a question from a location outside the Senate chamber, in accordance with Rule 40.8. For the purposes of this rule, “peacetime public health emergency” means any peacetime emergency declared by the Governor in an executive order that relates to the infectious disease known as COVID-19.

40.8 When permissible under Rule 40.7, a member may authorize a designee chosen by the respective caucus leader to vote on the member’s behalf while the member is at a location outside of the Senate chamber. When a member assigns the member’s vote to a designee under this rule, the designee shall vote on the member’s behalf as directed by the member on each question. The Secretary may adopt procedures to ensure the accurate and efficient administration of this rule.

During the pandemic and corresponding state of emergency, the Senate and House granted themselves the ability to cast votes from outside the chamber and even outside the capital city of St. Paul. Members ostensibly follow the debate on a computer screen or television and then “phone in” their votes. There is no justification for this kind of voting in the Minnesota Constitution. It’s another casualty of Democrats and Republicans setting aside constitutional principles out of fear of the pandemic.

Article 4, Section 12 of the Minnesota Constitution states:

Sec. 12. Biennial meetings; length of session; special sessions; length of adjournments. The legislature shall meet at the seat of government in regular session in each biennium at the times prescribed by law for not exceeding a total of 120 legislative days.

The words are clear:

“The legislature” — meaning Senators and Representatives.

“Shall meet” — not may meet.

“At the seat of government” — that means St. Paul, not on the phone from Duluth or Arizona.

To further understand what the framers of the Minnesota Constitution were thinking in regards to member voting, they gave us Article 4, Section 10:

Sec. 10. Privilege from arrest. The members of each house in all cases except treason, felony and breach of the peace, shall be privileged from arrest during the session of their respective houses and in going to or returning from the same. For any speech or debate in either house they shall not be questioned in any other place.

The framers anticipated members “going to or returning from” the seat of government and protected them from being detained by a rouge sheriff trying to influence public policy. With Senate Rules 40.7 and 40.8, there is nothing stopping a Senator from voting from a county jail over the phone, making this section of the constitution unnecessary.

Another hint from the framers about voting in person comes from Article 4 Section 16:

Sec. 16. Elections viva voce. In all elections by the legislature members shall vote viva voce and their votes shall be entered in the journal.

The framers expected members in their seats, voting out loud for the officers of the House and Senate. The current Senate rules allow a caucus leader, a job title not even mentioned in the Constitution, to decide who can vote remotely and who can’t, with no written criteria to guide them.

Weekend at Bernie’s voting

If you watch a session of the Senate today, the remote voting gets silly. Knowing how you would vote on a bill is one thing — you can read the text in advance of the vote and form your opinion. But members are now phoning in their votes on the fly for specific amendments, amendments to the amendments, and worst of all, procedural votes. How can you watch on a computer screen and understand the nuances of whether the President made the proper ruling in an appeal of the chair? It’s a naïve question since members are simply voting with their parties at that point.

Also, how can we be sure there is actually someone on the other end of the phone when these remote votes are called in? Remember the criticism of Sen. Scott Jensen when he participated in a Senate hearing from a golf course?

With the state of emergency over and Democrats newly in charge of the Senate chamber, Republicans argued to end remote voting during the rules debate in January.

Senate Majority Leader Kari Dziedzic attempted to compare the Senate to a business saying, “Businesses across the state have allowed that remote voting option.” Of course, businesses don’t vote on public policy that affects the lives of all Minnesotans. Dziedzic argued “situations happen, and we need to keep the people’s work moving forward.” Situations happened in the Minnesota House in 1996 and sometimes a bill couldn’t get passed that day. Remote voting is being used as a tool to allow a razor-thin majority in the Senate to govern as if they have a ten-vote margin.

For the first 162 years of statehood, Senate business was dictated by who showed up to vote. This proxy voting scheme is yet another casualty of our collective overreaction to the pandemic. It’s unconstitutional and it needs to stop.