Authorizing absent legislator to vote without being physically present

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) JO~tF'H E. BRENNAN ATTORNEY GENERAL L-:_.-..~ -· Jli"' / /} ~k~. ~ t.'..------t- i"51. ., J' A . .::j STATE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL Honorable John L. Martin Speaker of the House of Representatives State House Augusta, Maine 04333 Dear Speaker Martin: ""f,.;;._....._..., __ ,.,,_, 'i,,. ) I RICHt.RD S COHEN JOHN M. R. PATERSON DONALD G. ALEXA?,;D!:'.R. DEPUTY ATTORNEYS G[r,,:__,; _ You have inquired of me whether the Legislature, when it meets in convention to select the constitutional officers .of Secretary of State, Treasurer and Att6rney General, may authorize an absent member who has been officially sworn in and who is in the hospital to vote without being physically present in the Chamber. Based on the research we have been able to do in the limited time available to us, and for the reasons set forth below, the answer appears to be that the convention may authorize a member to vote by absentee ballot, provided that the method of voting qualifies as a "ballot" as that term is used in the Maine Constitution. The relevant constitutional provisions to be examined in ans·wering your question are Article V, Part Three, Section 1 (Secretary of State,Article V, Part Four, Section l(Treasurer), and Article IX, Section 11 (Attorney General). Those provisions each provide that the prospective constitutional officers shall be selected "by joint ballot of the Senators and Representatives in convention~" It is that constitutional provision which must be construed in order to determine whether an absent member may be authorized to vote in the convention. As a'general principle of law, the convention is empowered to adopt its own rules of procedure subject to the above constitu- tional limitation.In Richardson v. Young, 125 S.W. 664, 680 (Tenn., 1910) the Tennessee Supreme Court held that a joint conven- tion of the Tennessee Legislature meeting to select the Controller, Secretary of State and Treasurer had authority to adopt its own rules of procedure. The Court said, Page 2 "These conventions are deliberative bodies, and, their organization and proceedings not being regulated by any statute, it would see~, like all other bodies, they would have their power to elect their own officers, and adopt their own rules and be governed by established parliamentary usages and laws, one of which is that a majority of its·members constitute a quorum to do business, and a majority of that majority controls and has the power to do the work of the whole." The view that the convention may adopt is own rules is confirmed by an opinion of this office to the Secretary 0£ the Senate dated October 29, 1976e A copy of the opinion is appended hereto. Having determine, that the convention may adopt its own rules of procedure, the issue then becomes whether the method of voting is limited by the terms of the Constitution. As noted above, the applicable provisions state that the officers shall be elected by "joint ballot." The use of the term "ballot" appears to mean that voting is required to be conducted by the casting of paper ballots or some other method designed to protect the secrecy of the elective process and not by voice vote. l'Vhile there is no case law on that issue in :Maine, the general authorities on the subject · appear to agree that the use of the term "ballot 11 . is. intended to signify a secret voting technique. See for example, State v. Shaw, 9- S.C. ,94 (1877); and Mason's Manual of Legislative Procedure, § 536 {1975)0 I understand that longstanding practice of the Legislature when meeting in joint convention is consistent with this interpretation of the term "ballot .. " Accordingly, I conclude that the constitution requires a written, paper or other secret method of voting. l have reviewed the applica.ble .c..1l12s of the Legislature anc.--: have found no rµle which would limit the convention or otherwise prohibit the casting of an absentee ballot. However, as a matter of parliamentary practice, the general rule appears to be that in the absence of an authorizing rule, absentee ballots may not be cast in a legislative body. Robert's Rules of Order, pages 355-360 (1970); Mason's Manual of Legislative Procedure, § 538 (1975); 7 Cannon's Precedents, § 1014 (1936); 5 Hinds' Precedents, § 5941 (1907). Of co~rse, parliamentary precedent is not legally binding on a legislative bod_y, but is looked to merely as a guide for regulating 6onduct of the body. Therefore, the convention may Page 3 either by adoption of a rule authorizing the casting of an absentee ballot or by implementing its usual parliamentary procedure (which in this case I understand would involve a ruling by the chair on the propriety of an absentee ballot subject to a parliamentary challenge from the floor), authorize an absentee ballot. JMRP:mfe cc: Hon. Joseph Sewall Sincerely, JOHN M. R. PATERSON Deputy Attorney General f7, __ 1 osi-:PH E. BRE::-.:;-.~; ATTORNEY GENERAL R1CHA}1D S. COHE.., ,Jop,._,-,.. N. R. P.;.TERso~ Do~LD G . .AJ....~-....--n:13 ST-\TE OF )L\.INE DEP.ART~1E1'."""T OF THE _-\.rroR..--...'EY GENER.AL October 29, 1976 Honorable Harry N~ Starbranch Secretary of the Senate state House Augusta, Maine 04333 Dear Mr~ starbranch: DEPUTY A,,c::;s:::Ys GENERAL This office has recently received an oral request from ycr:::. for advice on a question concernin:: legislative voting require:-::e:-its in certain situations. It is our ~;1derstanding that the ques:::io::.i is asked because although the Constit~tion provides that each hcr~se of the Legislature "shall choose" their own officers and that co;2- sti tutional officers "shall be chcsen ~ • • by joint ballot o::: -the Senators and Representatives in cc:-lvention," there is no specific statement whether such selections s~a.11 be by majority, pluralit:y, or other vote_ Your question is: · "W-ha t is the voting req...::.rement--rnaj ori ty or plurality--in the following situations: (~.) for -:Ks•anization o:f a house of the Legislature; and (2) whe::1 the houses are voting in convention fo:c consti tutiona_l officers?" . This answer_ is necessarily ad-'- 0 i.sory because the ultimate }! decision, especially with regard to organizatim of either legislative body, is one which must be ma.de by -the legislative bodies the..-::selves, either alone or in convention as c.?:_?ropriate. Both the HOJse c£ Representatives and the Senate are constitutionally charged wi:::.n. the-· selection of their o-vn officers. _:.zt. IV, Pt. 1, § 7 and Pt. 2, § 7,, Constitution of 1-~aine. HO',vever, ·we advise that the answer to your question in either of the st.ated situations is that a majorit::{ vote would ordinarily be necessary, as :.ndica ted by accepted rules of parliamentary procedure and the prcctice of the Legislature. There is general agreeiilent a:-::onq coiTut1entators on parlian:e::~ary procedure that the basic principle of parliamentary decision ::.C.:"Cing i.s the rule of the majority of tI'..e i:icx3.y in electing officers. r Honorable Harry N. starbranch Page 2 October 29, 1976 "In the absence of a special rule, a majority vote is necessary to elect officers and a plurality is not sufficient. A vote for the election of officers, when no candidate receives a majority vote, is of no effect and the situation· remains exactly as though no vote had been taken." 1-'iason's Legislative :Manual, p. 393, .§ 553. "A plurality that is not a majority never chooses a proposition or elects anyone to office except by virtue of a special rule previously adopted~" Robert's Rules of Order, p. 343 1 § -43 (1970 ed.) Adherence to this basic principle in the election of officers has been the practice of both houses of the .Maine Legislature, as exemplified by the format of the report of the committee which super- intends counting of the ballots. In each case the committee reports the total number of votes cast, followed the number necessary for a choice - in terms of a majority of the votes cast -- and the votes for each nominee. Two examples of past practice of the Legislature, at least with .t:espect to election of constitutional officers, can be found in the proceedings of the 77th and 105th Legislatures. The 77th Legislature met in convention on January 6, 1915, to elect the constitutional officers. There were 17 Republicans and 14 Democrats in the Senate,. and 78 Democrats, 69 Republicans and 4 Progressives in the House of Representatives. The report of the first bnllot fer Sec:-etary of state was: votes cast -- 180; necessary for a choice - 9li John E. Bun .. J;;:er - 89; Joseph E _ Alexander - 8 7; Roland E. Clark - 4. The report was accepted but the vote was declared "no choice" because none of the ncxninees received a majority of the votes cast. It ·was not until sixdays and 10 ballots later that ¥.Lr. Bunker was elected by receiving a majority of 91 of the 180 votes cast. Legislative Record, House of Representatives, January 6-12, 1915. The second ~xample concerns the election of the Attorney General by the 105th Legislature in 1971. The coiTu~ittee report on the first ballot was: votes cast - 179; necessary for a choice - 90; James S. Erwin - 90; Bruce Chandler - 89. The report was challenged on the basis that the 179 votes· cast did not include 3 which were considered void because they \vere for people who had not been nominated, therefore there were actually 182 votes cast and 92 would have been needed for a majority. Another question ,.;as raised concerning the accuracy of the total votes cast since two legislators were absent. P-. a result, the Chair ruled that since Nr. Erwin did not receive a rk .. Jority of all votes cast and since it appeared that there w~re more votes cast than there were legislators present and voting, another Honorable H2::-ry N. starbranch Page 3 October 29, 1976 written ballot would be ordered. I·!r. Erwin was elected on the sub- sequent ballot, receiving 92 of the 180 votes cast. Legislative Record, Bouse of Representatives, January 6, 1971, Vol. 1, pp. 18-19. The foregoing examples demonst!::·ate the practice of the ¥.aine Legislature in requ.:ic ing a majority vote for constational officers. It is believed tra t the same procedure is contemplated by the Con- stitution for organization of the ~o bodies~ insofar as this relates to election of legislative officers. A paraliel situation exists in the United states Congress which, like the Maine Legislature, is con- stitutionally charged with the selection of its officers, with the exception of the President of the Senate. Art. I, §§ 2 and 3, united states Constitution~ No specific vote is required in the United states Constitution, however, it has been decided as a parliamentary matter that a majority is required. VI C2.nnon's Precedents, p. 15, § 23. It should be noted that in two cases the United States House of Representatives has abandoned this rule by vote of the House in electing its Speaker~ In 1849, after 19 days and 59 ballots, a special plurality -rule was adopted and a Speaker was elected. I Rind 1 s Precedents, p. 124, § 221.· In 1856 a similar special plurality rule -was adopted after 129 ballots had failed to elect a Spea-;:er. I Hind I s Prece:lents, p. 126, § 222. There may be srn1e question as to the applicability of the majority ule for the purposes discussed a::iove in light of the fact that the Governor._. Senators and Representatives are elected by plurality. Art. IV, Pt. 1 6 § 5 and Pt. 2, §§ 3 and 4, and Art. VI, Pt. 1, § 3, Constitution of .Maine_ However, plurality election of these offici!"lls was not always the -case. The Constitution originally required a rnaj ori ty vote and it was sequentially amended to change the! re.Iuire- ment for the House 0f Representatives in 1848 (Resolves, 1847, c. 45), the Senate in 1876 (Resolves, 1875, c. 98), and the Governor in 1880 (Resolves, 1880,· c ~ 159). In each case the change of voting require- ment was accocilplished by amendment of the state's organic document its Constitution - and would not coq)el different requirements for other voting situations. In sufil-nary, we advise that the voting requirement for both organization of the two legislative bodies and for election of con,- stitutional officers by joint ballot in convention should be a majority at the votes cast~ However, this requirement would be subject to change by the body or convention if such c~2.nge proved necessary and sufficient support for such change; is found. Please continue to contact us if we can be of assistance. sin;::erely, l:., ,J --:"-:- -~;vi (_ - . /.:.~--~ ------ .. - , '" ' JOS~PH E. BRENNAN JE3:mfe At. ~::>;::-n2y General cc: Honorable Edwin H. F0rt