Continuity of Legislature During Emergency

4/26/2021

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Planning for a disruption in the operation of state government, and legislatures in particular, has been on the minds of the legislative bodies since the 1950s, during the height of the Cold War, and, in some cases, was provided for in state constitutions even earlier. Providing the legislature with methods to continue to work, or return to work, during an emergency is an important goal.

The threats to a legislature’s ability to function may be as complex as an enemy attack or as seemingly mundane as the flu. In fact, pandemic flu is one of many catastrophic events that could affect state legislatures. 

NCSL has compiled information for legislatures to consider in developing or reviewing a continuity of government plan.

Examine State Constitution, Statutes and Chamber Rules

A good starting point is to examine the state constitution for provisions that may help in designing a continuity of government plan as well as identifying provisions that could derail these efforts.

What to look for:

  • A continuity of government (COG) authorization.
  • Determine under what circumstances your COG authorization applies. Many emergency actions only occur “in case of enemy attack.”
  • Determine whether the seat of government can be changed and under what circumstances.
  • Determine whether quorum requirements can be changed or suspended.
  • Determine whether legislative sessions are required to be open.
  • Determine whether the legislature may meet remotely.

Continuity of Government Authorization

Continuity of government encompasses many aspects of the legislative process, from the way the legislature is convened in an emergency, to lines of succession for public offices, and the location where the session will be held. The authority to do many of these things resides in a state’s constitution. While many constitutional provisions tie the trigger for these powers to an enemy attack, a few have broadened the definition to include other emergencies.

In 2019, for example, Washington voters approved a constitutional amendment to expand continuity of government authorization beyond “enemy attack.” The amendment added “catastrophic incidents” to the specified periods of emergency.

Another example is a temporary joint rule adopted in 2021 by the Colorado General Assembly, which sets out procedure during a declared disaster emergency.

Session

There are two main types of legislative sessions—regular and special (sometimes known as extraordinary). A regular session is the annual or biennial gathering of legislators, the starting date (and often, the length) of which is set by constitution or statute. 

Unlike regular sessions, there is no specific timing for special sessions. They occur intermittently to deal with specific issues or topics. Usually, the scope of a special session—that is, the topics that may be taken up—is limited to the issues specified in the notice calling for the special session. Legislatures may be called into special session during an emergency.

In 36 states, the governor and the legislature have the ability to convene a special session. In the remaining 14 states, however, only the governor has that authority.

Due to the COVID-19 emergency, many legislatures suspended, postponed or temporarily adjourned their sessions. Others have met in special sessions. NCSL is tracking those actions here.

Emergency Interim Successors or Lines of Succession

Most emergency interim succession acts were enacted during the Cold War period between 1959 to 1963 as a result of increased tensions between the U.S. and the Soviet Union. During this time, state legislatures enacted laws to provide emergency successors (replacements) for legislators in the event an enemy attack occurred. Today, these acts have the potential for use with other emergencies, i.e., during a natural disaster or pandemic.

At least 12 states have a provision in constitution or statute for legislative emergency interim successors. Several other states have constitutional provisions for emergency interim successors for public offices.

Temporary Suspension or Modification of Quorum in an Emergency

“Quorum” is defined as the number of members of a deliberative body that must be present in order to transact business and to make its acts valid. Most often, that number is a majority of the membership. In four legislatures, there is a supermajority requirement. At least 16 states, listed below, can change or suspend quorum requirements in an emergency.

State Citation Language

Alabama

Ala Code § 29-3-13 Quorum and vote requirements.

In the event of an attack: (1) Quorum requirements for the Legislature shall be suspended; and (2) Where the affirmative vote of a specified proportion of members for approval of a bill, resolution or other action would otherwise be required, the same proportion of those voting thereon shall be sufficient. (Acts 1961, No. 875, p. 1371, §13.)

Delaware

Del. Code § 1714. Quorum and vote requirements.

 

In the event of an emergency event, all of the following apply: (1) Quorum requirements for the General Assembly are suspended. (2) If the affirmative vote of a specified proportion of members for approval of a bill, resolution, or other action would otherwise be required, the same proportion of those present to vote on the bill, resolution, or other action is sufficient.

Georgia

Ga. Code § 38-3-53. Emergency locations -- Meeting of General Assembly; call; suspension of constitutional rules

The General Assembly shall meet at the new location provided for in Code Section 38-3-52 either upon the call of the Governor or, if no call is issued, through the initiative of the members thereof following an emergency or disaster resulting from manmade or natural causes or enemy attack impending or affecting this state. At such time the General Assembly shall not be limited by any constitutional provisions relating to length of sessions, and it may suspend the operation of any and all constitutional rules governing the procedure of both the House of Representatives and the Senate as it deems necessary during the period of emergency or disaster. Ga. L. 1962, p. 473, § 1; Ga. L. 1973, p. 74, § 11.

Idaho

Idaho Code Tit. 67, Ch. 425 67-425. Quorum and vote requirements.

In the event of an attack, (1) quorum requirements for the legislature shall be suspended, and (2) where the affirmative vote of a specified proportion of members for approval of a bill, resolution or other action would otherwise be required, the same proportion of those voting thereon shall be sufficient.

[67-425, added 1961 (E.S.), ch. 4, sec. 13, p. 20.]

Kansas

Kan. Stat. §48-1312. Quorum and vote requirements.

In the event of an attack: (1) quorum requirements for the legislature shall be suspended; and (2) where the affirmative vote of a specified proportion of members for approval of a bill, resolution or other action would otherwise be required, the same proportion of those voting thereon shall be sufficient.

L. 1961, ch. 252, § 12; June 30.

Louisiana

La. Rev. Stat. § 24:74 Quorum and vote requirements

In the event of an attack: (1) Quorum requirements for the legislature shall be suspended, and (2) Where the affirmative vote of a specified proportion of members for approval of a bill, resolution or other action otherwise would be required, the same proportion of those voting thereon shall be sufficient.  

Acts 1963, No. 113, §14.  

 

La. Rev. Stat. §24:74 Quorum and vote requirements

In the event of an attack: (1) Quorum requirements for the legislature shall be suspended, and (2) Where the affirmative vote of a specified proportion of members for approval of a bill, resolution or other action otherwise would be required, the same proportion of those voting thereon shall be sufficient. Acts 1963, No. 113, §14.

Minnesota

Minn. Stat. § 3.96 Quorum and Vote Requirements.

In the event of an attack the quorum requirement for the legislature is a majority of the members of each house who convene for the session. If the affirmative vote of a specified proportion of members of the legislature would otherwise be required to approve a bill, resolution, or for any other action, the same proportion of the members of each house convening at the session is sufficient. 1961 c 572 s 4; 1988 c 469 art 1 s 1 

Montana

Mont. Code § 10-3-606. Quorum requirement.

If, following an enemy attack, the legislature or any state or local government council, board, or commission is unable to assemble a quorum as defined by the constitution of Montana or by statute, then those legislators or members of the council, board, or commission available for duty shall constitute the legislature, board, or commission and quorum requirements shall be suspended. Where the affirmative vote of a specified proportion of members for the approval of any action would otherwise be required, the same proportion of those voting thereon shall be sufficient. En. Sec. 6, Ch. 268, L. 1967; R.C.M. 1947, 82-3806.

Nebraska

Neb. Const. Art 3, Sec. 29

Legislative authority in emergencies due to enemy attack upon United States. 3-29 Legislative authority in emergencies due to enemy attack upon United States. (1) In order to insure continuity of state and local governmental operations in periods of emergency resulting from enemy attack upon the United States, or the imminent threat thereof, the Legislature shall have the power and the immediate duty, notwithstanding any other provision to the contrary in this Constitution, to provide by law for: … (b) The convening of the Legislature into general or extraordinary session, upon or without call by the Governor, during or after a war or enemy caused disaster occurring in the United States; and, with respect to any such emergency session, the suspension or temporary change of the provisions of this Constitution or of general law relating to the length and purposes of any legislative session or prescribing the specific proportion or number of legislators whose presence or vote is necessary to constitute a quorum or to accomplish any legislative act or function; … Source - Neb. Const. art. III, sec. 29 (1960); Adopted 1960, Laws 1959, c. 234, sec. 1, p. 815.

Nevada

Nev. Const. Art. 4 Section 37.

Continuity of government in case of enemy attack; succession to public offices; legislative quorum requirements; relocation of seat of government. The legislature, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for immediate and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations, including changes in quorum requirements in the legislature and the relocation of the seat of government. In the exercise of the powers hereby conferred, the legislature shall conform to the requirements of this constitution except to the extent that in the judgment of the legislature so to do would be impracticable or would admit of undue delay.

[Added in 1964. Proposed and passed by the 1961 legislature; agreed to and passed by the 1963 legislature; and approved and ratified by the people at the 1964 general election. See: Statutes of Nevada 1961, p. 831; Statutes of Nevada 1963, p. 1416.]

New Mexico

N.M. Stat. § 12-11-17. Quorum and vote requirements  

 

During the period of a disaster emergency, the quorum requirements for convening the legislature shall be one-third of the members, and all special or regular majorities shall be based on members present. Provided further that legislative action taken without the requisite members present, or without the majority required under the constitution shall be effective only for the period of the disaster.  

North Dakota

N.D. Const. Art. 11, Sec. 7

The legislative assembly, in order to ensure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and immediate duty (1) to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) to adopt such other measures as may be necessary and proper for ensuring the continuity of governmental operations including, but not limited to, waiver of constitutional restrictions upon the place of transaction of governmental business, upon the calling of sessions of the legislative assembly, length of sessions, quorum and voting requirements, subjects of legislation and appropriation bill requirements, upon eligibility of legislators to hold other offices, residence requirements for legislators, and upon expenditures, loans or donations of public moneys. In the exercise of the powers hereby conferred the legislative assembly shall in all respects conform to the requirements of this constitution except to the extent that in the judgment of the legislative assembly so to do would be impracticable or would admit of undue delay.

South Carolina

S.C. Code § 2‑5‑130. Quorum; necessary proportion of vote.

In the event of an attack, (1) quorum requirements for the General Assembly shall be suspended, and (2) where the affirmative vote of a specified proportion of members for approval of a bill, resolution or other action would otherwise be required, the same proportion of those voting thereon shall be sufficient.

Texas

Tex. Const. Art. 3, Sec. 62

… (b) When such a period of emergency or the immediate threat of enemy attack exists, the Legislature may suspend procedural rules imposed by this Constitution that relate to: (1) the order of business of the Legislature; (2) the percentage of each house of the Legislature necessary to constitute a quorum; (3) the requirement that a bill must be read on three days in each house before it has the force of law; (4) the requirement that a bill must be referred to and reported from committee before its consideration; and (5) the date on which laws passed by the Legislature take effect

 

Tex. Gov. Code § 304.011. Quorum | Votes.

In the event of an attack, the quorum requirements imposed on the legislature are suspended. If the affirmative vote of a specified proportion of members is required to approve a bill or resolution, the same proportion of those present and voting on the bill or resolution is sufficient for its passage.

Virginia

Va. Const. Art 4, Sec. 8. Quorum.

A majority of the members elected to each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and shall have power to compel the attendance of members in such manner and under such penalty as each house may prescribe. A smaller number, not less than two-fifths of the elected membership of each house, may meet and may, notwithstanding any other provision of this Constitution, enact legislation if the Governor by proclamation declares that a quorum of the General Assembly cannot be convened because of enemy attack upon the soil of Virginia. Such legislation shall remain effective only until thirty days after a quorum of the General Assembly can be convened.

Washington

Wash. Const. Art. 2, Sec. 42.

Governmental Continuity During Emergency Periods. The legislature, in order to insure continuity of state and local governmental operations in periods of emergency resulting from a catastrophic incident or enemy attack, shall have the power and the duty, immediately upon and after adoption of this amendment, to enact legislation providing for prompt and temporary succession to the powers and duties of public offices of whatever nature and whether filled by election or appointment, the incumbents and legal successors of which may become unavailable for carrying on the powers and duties of such offices; the legislature shall likewise enact such other measures as may be necessary and proper for insuring the continuity of governmental operations during such emergencies. Legislation enacted under the powers conferred by this amendment shall in all respects conform to the remainder of the Constitution: Provided, That if, in the judgment of the legislature at the time of the emergency, conformance to the provisions of the Constitution would be impracticable or would admit of undue delay, such legislation may depart during the period of emergency caused by a catastrophic incident or enemy attack only, from the following sections of the Constitution: Article 14, Sections 1 and 2, Seat of Government; Article 2, Sections 8, 15 (Amendments 13 and 32), and 22, Membership, Quorum of Legislature and Passage of Bills; Article 3, Section 10 (Amendment 6), Succession to Governorship: Provided, That the legislature shall not depart from Section 10, Article III, as amended by Amendment 6, of the state Constitution relating to the Governor's office so long as any successor therein named is available and capable of assuming the powers and duties of such office as therein prescribed; Article 3, Section 13, Vacancies in State Offices; Article 11, Section 6, Vacancies in County Offices; Article 11, Section 2, Seat of County Government; Article 3, Section 24, State Records. [AMENDMENT 109, 2019 Senate Joint Resolution No. 8200. Approved November 5, 2019.]

NOTES: Continuity of government act: Chapter 42.14 RCW.

 

Wash. Rev. Code §42-14-030

In the event that a catastrophic incident reduces the number of legislators available for duty, then those legislators available for duty shall constitute the legislature and shall have full power to act in separate or joint assembly by majority vote of those present. In the event of a catastrophic incident, (1) quorum requirements for the legislature shall be suspended, and (2) where the affirmative vote of a specified proportion of members for approval of a bill, resolution, or other action would otherwise be required, 12 the same proportion of those voting thereon shall be sufficient. In the event of a catastrophic incident, the governor shall call the legislature into session as soon as practicable, and in any case within thirty days following the inception of the catastrophic incident. If the governor fails to issue such call, the legislature shall, on the thirtieth day from the date of inception of the catastrophic incident, automatically convene at the place where the governor then has his or her office. Each legislator shall proceed to the place of session as expeditiously as practicable. At such session or at any session in operation at the inception of the catastrophic incident, and at any subsequent sessions, limitations on the length of session and on the subjects which may be acted upon shall be suspended. [ 2019 c 471 § 6; 2012 c 117 § 107; 1963 c 203 § 4.]

 

Remote Participation

In normal circumstances, legislatures typically operate under a “you must be present” rule—that is, legislators must be physically present in committee or on the chamber floor to participate in debate or voting. The rationale for this rule centers on the integrity of the legislative process. Requiring members’ physical presence creates a comfort level that procedures can more easily be controlled and the public can witness debate and voting. State legislatures, however, more often allow the use of technology to facilitate public input into committee meetings.

Prior to 2020, two states—Oregon and Wisconsin—had specific provisions allowing the remote or virtual meeting of the legislature in an emergency.

In 2012, Oregon voters approved a constitutional amendment relating to catastrophic disaster. The amendment defined catastrophic disaster and grants additional powers to the governor and legislature. The approved amendment is set forth in Article 10-A of the Oregon Constitution. The language authorizing participation in session by electronic or other means is in Section 5.

Wisconsin’s constitutional provision on continuity of civil government (Article 4, Section 34) allows the legislature to “adopt such other measures that may be necessary and proper for attaining the objectives of this section.” Wisc. Stat. § 13.42 was enacted under this authorization. The statute allows virtual meetings of the legislature and legislative committees when an emergency (or imminent threat of one) exists.

Remote Participation in 2021

Just as they did in the first year of the pandemic, many legislative chambers adopted provisions in 2021 to allow legislators to participate remotely in legislative proceedings, both on the floor and in committee. Most 2021 chamber rules allowing for remote participation are temporary or are tied to an emergency. The ways in which legislatures are allowing for remote participation vary, including the use of virtual tools such as web-based meeting platforms, conference calls, proxy voting or via participating within a capitol location but not within the chamber. While some legislatures have met with all members, or most, participating remotely, some remote participation have allowed others to use a “hybrid” approach to meeting, where some or most members are in-person and others virtual.

The two maps below indicate chambers that allow legislators to participate remotely in legislative proceedings, based on 2021 chamber rules, chamber or legislative policies, or practices. As legislative proceedings have evolved over the past year, this chart may not reflect all remote voting practices in use. For information on remote participation on the part of the public, visit the NCSL webpage Remote Public Participation in Committee Proceedings.

Remote Participation in Floor Proceedings 

Remote Participation in Committee Proceedings

Remote Participation in 2020

Beginning in March 2020, one or both chambers in at least 28 states, the District of Columbia, Guam and the Virgin Islands adopted or enacted measures to allow for remote participation or voting, or proxy voting, by members in floor sessions or committee meetings. Some chambers and committees, nevertheless, have chosen not to meet remotely.  Also, chamber rules or statutes adopted or enacted prior to 2020 in several states also authorize remote committee proceedings. In most states, the changes were temporary and tied specifically to the COVID-19 emergency. They are:

Information Technology, Facilities and Operations, and Staffing

In addition to the constitutional provisions, statutes, and chamber rules that help facilitate the legislative process during an emergency, COG plans also may include other aspects of legislative operations. The following are three examples.

Information Technology. Information technology (IT) is the backbone of an organization, and planning for a disruption in operations is vital. When considering what to include in continuity of government plans, remember that without IT capabilities in the event of an emergency, the plan itself is likely to be disrupted. For example, as noted above, some legislatures have provisions that allow them to meet virtually. In light of the COVID-19 crisis, legislatures are quickly adapting to these changing circumstances and using web-based virtual meeting tools and video- or teleconferencing for remote meetings. They are continuing to live-stream proceedings to facilitate virtual participation in the process. In addition, IT staff are supporting legislative staff and legislators as they continue to work from home.

Facilities and Operations. The state capitol is the “people’s building” and is the physical face of state government. Keeping the physical building open and operating can be a big challenge, especially in the event of an emergency.

Staffing. Legislative staff are integral to the functioning of state legislatures. They process legislation, conduct research, develop budget analyses, provide constituent support and a variety of other tasks.

Additional Resources