RÉSUMÉ DIGEST
SB 20 2020 Second Extraordinary Session Hewitt
Present law provides that if the secretary of state determines that an emergency declared by
the governor impairs an election that could be held except for technical, mechanical, or
logistical problems with respect to the relocation or consolidation of polling places and
potential shortages of commissioners or voting machines, the secretary of state shall certify
such facts and the reasons therefor to the governor, the Committee on Senate and
Governmental Affairs, and the Committee on House and Governmental Affairs. Proposed
law would add other impairments that affect participation in or the integrity of the electoral
process to the impairments that the secretary shall consider and certify to the governor and
the committees.
Present law provides that if the governor and a majority of the members of each committee
concur that an emergency plan is necessary, the secretary of state shall develop an emergency
plan to address the impairments. Present law would be applicable to the additional
impairments added by proposed law.
Proposed law additionally would require the committees to meet within 10 days following
the secretary of state's certification and requires the committees to meet and function as a
joint committee.
Present law authorizes the secretary of state to include in the plan a proposal to conduct early
voting. Proposed law would retain present law.
Present law limits the locations of such early voting to the offices of the registrars and
provides for conducting early voting in accordance with present law. Proposed law would
remove these limitations and provides for such early voting at times and locations that are
accessible to affected voters.
Present law requires the secretary of state to present the plan to the governor, Senate and
Governmental Affairs Committee, and House and Governmental Affairs Committee for their
approval.
Proposed law would specifically authorize the secretary of state to present alternative plans
at the same time and also authorize the secretary to present the plan or plans at the same time
as the certification. Would further require the joint committee to meet no later than 10 days
following receipt of the plan and require the joint committee to send notice of each meeting
held pursuant to proposed law to the governor and provide that the governor or his designee
may attend and provide recommendations regarding the emergency plan. Proposed law
would further specifically provide that the secretary of state may incorporate changes
suggested and approved by the joint committee.
Present law provides that upon approval by a majority of the members of the Senate and
Governmental Affairs Committee and House and Governmental Affairs Committee, the
emergency election plan shall be sent to members of each house of the legislature for
approval by mail ballot. Proposed law would retain present law but removes the requirement
that the ballot be a "mail" ballot.
Present law provides that a copy of the roll call votes of the Senate and Governmental Affairs
Committee and the House and Governmental Affairs Committee on the approval of the
emergency plan and the plan shall be included in the notice sent with the ballots to members
of both houses of the legislature and that the ballots must be returned to the secretary of the
Senate or clerk of the House of Representatives within a certain time period.
Proposed law would retain present law but remove provisions specifically related to mailing
ballots and different time periods for voting and deadlines for return of ballots dependent
upon whether the legislature is in session or not. Proposed law would provide for procedures
for transmittal of the ballot by the secretary of the Senate or clerk of the House of
Representatives using the most efficient medium available and for them to devise a method
for a member to validate his ballot. Proposed law would provide that the ballots shall be
returned no later than the fifth business day after transmittal, allow a member to withdraw his ballot or change his vote prior to the deadline, and provide that the secretary of the Senate
and clerk of the House shall tabulate the votes on the next business day after the deadline.
Proposed law would further require that if a majority of the elected members of each house
approved the emergency plan, the governor to approve or veto the plan no later than five days
after he receives the certified tabulation sheet. Would require the governor to send approval
message to the secretary of state and the chairs of the governmental affairs committees.
Would require the governor to immediately send his disapproval message to the secretary of
the Senate and clerk of the House who shall immediately transmit a ballot to each member
of the legislature phrased to allow member to vote for or against overriding the governor's
disapproval using the same procedures and deadlines provided in proposed law above.
Present law provides that upon approval by a majority of the members of each house of the
legislature and the governor, the secretary of state shall take all steps necessary to implement
the plan. Proposed law would retain present law and further provide that if two-thirds of the
elected members of each house of the legislature vote to override the governor's veto, the
secretary of state shall take all steps necessary to implement plan.
Would become effective upon signature of governor or lapse of time for gubernatorial action.
(Proposed to amend R.S. 18:401.3)
VETO MESSAGE: "Please be advised that I have vetoed Senate Bill 20 of the Second
Extraordinary Session.
This bill was drafted to address the method by which emergency election plans are submitted
by the Secretary of State and adopted by the Legislature and the Governor. During the spring
elections this year, which were ultimately delayed until July and August because of the
COVID-19 emergency, Louisiana operated under an emergency election plan that allowed
for the people of Louisiana to safely and securely vote without taking unnecessary health
risks. Unfortunately, for the most recent election conducted just one week ago, the
emergency election plan that was submitted by the Secretary of State was wholly inadequate
for the dangers posed by the COVID-19 environment. Because it did not adequately protect
the health and safety of the people of Louisiana, I rejected that plan, for reasons that I made
clear at the time. Thankfully, United States District Judge Shelly Dick ordered that the
July/August election plan be implemented for the November election. By all accounts, this
election plan seems to have been conducted safely and securely, belying all of the concerns
raised by the Attorney General and others about an emergency election plan that
acknowledges that Louisiana is, in fact, in a state of emergency. Thus, the only loss to the
State from the manner in which the most recent election was held is the nearly $1 million
dollars the Attorney General reportedly paid to out-of-state lawyers to unsuccessfully fight
the litigation.
Senate Bill 20 is a product of the disputes over the emergency election plan this fall. As
originally introduced, it was designed to significantly reduce the Governor's authority to
disapprove of an election plan. This was an obvious attempt to respond to my action this fall
and to eliminate the necessary check that the Governor has on legislative approval of an
inadequate election plan. However, in the House, the bill was made significantly better, as
it was amended to maintain that the Governor could disapprove of the emergency election
plan. This disapproval could only be overridden if two-thirds of the elected members of each
chamber would vote to overrule the Governor's disapproval. This is consistent with the
constitutional requirement of a supermajority for the Legislature to override the Governor.
Further, some of the other changes in Senate Bill 20 are favorable to the cumbersome
structure in current law.
However, as finally passed, Senate Bill 20 has some defects that should not be written into
law. First and foremost, there was insufficient consideration of the constitutional restriction
imposed by Article 3, Section 15, which provides "action on any matter intended to have the
effect of law shall be taken only in open, public meeting." The structure for voting to approve
the plan or to override the disapproval would seemingly run afoul of this requirement, as any
action taken by the Legislature pursuant to this vote would have the "effect of law" and
would not be taken in an open meeting. Further, this structure suffers from the same infirmity
as House Bill 4 of this session in that it allows for transmittal of ballots via text message.
This method of transmittal is simply not acceptable. Putting aside the irony that many of the supporters of this bill assailed the security of mail-in voting for the public while at the same
time providing for mail-in voting of ballots for themselves, this process should not be taken
a step further by allowing balloting by text messaging and eliminating the paper trail of a
mail-in ballot.
Since there will be no statewide elections conducted before the next legislative session, I
pledge to work with the bill author, Senator Hewitt, and the leadership to draft a bill in the
upcoming regular session that will address these concerns, while preserving some of the
improvements proposed in the current bill."