If they are absent, how can legislators vote?
Well, under the Louisiana House rules, all legislators need to do is walk to the front of the chamber at the end of a day’s proceedings — often hours after an actual vote — and announce they want to change their “absent” vote on an issue to “yes” or “no.”
They also can change the official record of the red or green button they had pushed at their desks to make their “yea” vote “nay” or vice versa.
It happens fairly often: 453 times over the past three legislative sessions and 78 times so far this session, which began April 13 and ends June 11, according to the official House Journal.
Those who watched the House tax-vote proceedings in early May saw the phenomenon as 17 representatives flocked to the microphone at the end of the day to change their official voting record on a variety of bills that raised revenues.
House leaders needed their votes to ensure the passage of measures that would provide some of the money to fill part of a $1.6 billion deficit, even though the business community adamantly opposed the bills and called them tax increases. But by the end of the day, the leaders had more than enough votes — rules forbid changes that would upset the outcome of a vote — so the legislators were allowed to make some changes to the official journal. Ten of the lawmakers had been previously recorded as “absent.”
Half of the nearly 80 House vote alterations in the current session involved representatives originally recorded as absent.
But that’s just in the House. Under Louisiana Senate rules, “No senator shall be permitted, under any circumstances whatever, to vote after the decision is announced from the chair.”
Representatives have had the option, for years, to “correct” their votes.
Legal questions swirl around the practice as well as reservations about how legislators use it to help themselves and their colleagues.
It’s no longer just about House members moving votes from “yea” to “nay.” The absent representatives’ votes can provide a “safety valve” to help people who want to change votes.
For example, the 105-member House by a bare 53-vote majority recently approved legislation reducing penalties for marijuana possession. But House Bill 149 was a difficult vote, many lawmakers say, because an effort to make the sentences fairer and closer to what other states do can become an issue in political campaigns in which the legislators who voted for the change could be painted by opponents as soft on crime.
State Rep. Mike Huval, R-Breaux Bridge, had voted for the measure but wanted to change his vote. However, he couldn’t do so until someone stepped up to replace his “yea” vote to ensure the bill’s passage would not be upset.
Enter state Reps. Karen St. Germain, D-Pierre Part, and Harold Ritchie, D-Bogalusa, both of whom had been absent and now wanted to vote for the bill. Huval was allowed to switch.
House Speaker Chuck Kleckley said allowing absent legislators to vote later does not “hurt or damage the process at all.”
Kleckley said House members sometimes are not available to vote because “they have been pulled out back by a constituent or lobbyist” or may be handling one of their bills in a Senate committee. “They still want to vote on an issue,” he said.
There is full public disclosure of representatives’ voting activity, said Kleckley, R-Lake Charles. Representatives must ask their colleagues for approval to make the change on the day the vote takes place. Permission is routinely granted.
Most important, Kleckley said, the vote alterations cannot change the outcome on legislation that previously had been either approved or rejected.
LSU law professor Ray Lamonica pointed out that the Louisiana Constitution requires that the official journal of the House “accurately” reflect its proceedings.
“So the question is whether this procedure complies with that provision of the constitution,” said Lamonica, a co-author of the book “Legislative Law and Procedure” and a former executive counsel to Gov. Dave Treen.
“Does it accurately reflect their vote and their presence at the time of the vote, or is the public being deceived?” Lamonica asked.
A footnote in the legislative procedures book raises an issue about changing votes, noting that the practice “could arguably be construed” as allowing a House member to vote twice on the same measure” and then choose which vote would be reflected in the official journal as their recorded vote. “Whether this practice comports with constitutional requirements, including that the journal be accurate and reflect all record votes, is problematic,” it says.
House Clerk Alfred “Butch” Speer said nothing in the Louisiana Constitution says a member has to be in the House chamber to cast a vote.
But the official journal must reflect that the House met all the constitutional mandates for a bill to become law. “We have an accurate reflection of the final vote at the end of the day,” Speer said.
The updated vote is printed in the journal, followed by a notation of what changed from the original announced vote. On the House website, the recorded votes are the “corrected” version after all the additions, subtractions and flip-flops.
Most of the time, the changes come in situations where representatives were otherwise occupied at the time of the vote but don’t want to show up in the official record as not voting.
“If you are absent, you could be in committee or in the back of the room talking to someone. You could be getting a cold drink or going to the rest room,” said state Rep. Frank Hoffmann, R-West Monroe, who has altered his votes more frequently than most House members — 30 times since 2012, according to journal records. Only state Rep. Lenar Whitney, R-Houma, has done it more often.
Hoffman said, however, that he wouldn’t have a problem moving to the Senate’s rule of no vote changes. “If you were not able to do it, it would not be a problem for me,” he said.