On my very first voting session in the Assembly, a quarter century ago, after the caucus finished discussion non-consent bills, Leader DiGaetano asked the Republican Majority (sigh) if any of the consent bills raised any questions. Up shot my freshman hand. The Leader smiled and recognized me.
“This bill”, I specified, “isn’t it unconstitutional”?
The sponsor, a GOP colleague (a lawyer) standing in the back of the room, replied, “yeah. So?”
I voted no. But it passed, probably 79-1.
Years later, when the spectacularly misnamed Anti-bullying bill arose, I again enjoyed my status as the lonely “no” vote, because it clearly violated the Unfunded Mandates Clause (aside from being profoundly silly). Indeed, that provision is repeatedly violated, as many of my erstwhile colleagues felt that such questions need not trouble them overmuch; if the courts (or mandate commission) reverses the bill, so be it.
Emergencies create much more substantial problems. Lincoln, faced with insurrection, indisputably pressed the Constitution beyond its language, but he gets a pass from history. USCJ Hughes, commenting on emergencies, said:
“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”
A similar analysis applies at the state level. Which brings us around (finally) to the point of this piece.
A-3850 permits public entities to meet electronically. It has been characterized here as “allowing the Legislature to hold votes remotely during a state of emergency”.
The bill applies more broadly, to any “public body”. And to the extent that it applies to the local Governing Body, Planning Board, etc., it seems both unobjectionable and something which should probably be permitted as a general rule, not simply during emergencies. The Legislature is free to regulate the meetings of its subordinate entities as it sees fit.
But to the extent it can be said to apply to the Legislature, it runs into a problem.
Article IV, Sec IV, ¶ 6 of our Constitution reads:
“No bill or joint resolution shall pass, unless there shall be a majority of all the members of each body personally present and agreeing thereto, and the yeas and nays of the members voting on such final passage shall be entered on the journal.
“Personally present” was almost certainly intended to preclude proxy votes, and, for quorum purposes, we’ve already permitted Legislators to “vote” present, even if not physically in the State House. But it seems fairly clear that our Framers intended that for a law to pass, 41 Assembly Members must be physically present in the Chambers and in support thereof.
Our present circumstances might bespeak the desirability of Constitutional change; the people could assess the merits of permitting distance voting in times of disaster. (Our Framers, writing in a generation which knew, inter alia, polio, were certainly familiar with such problems.) But it would seem that should this proposal actually apply to Legislative sessions, it would run afoul of the Constitutional language which seems to clearly require a legislator to be physically present to vote. And, even in times of emergency, the government must act in a manner consistent with constitutional restraints.
I would have voted “yes”, but made a statement: “this does not apply to us. We may empower other entities to meet electronically, because they answer to us. We answer to a higher authority.”
Michael Patrick Carroll represented Morris County in the New Jersey General Assembly from 1996 to 2020.