Will the state Legislature actually go virtual?

The coronavirus pandemic has thrown the world off its axis, and in Albany – the center of New York’s political world – that fact became clear as lawmakers deliberated, debated and passed a state budget, all in an eerily quiet state Capitol building.

With the state on virtual lockdown and some legislators even battling the virus themselves, convening in the state Senate or Assembly chambers to pass the budget seemed like an obvious danger to be avoided, if at all possible. That’s why both houses adopted resolutions in late March, just before the April 1 budget deadline, allowing remote voting during a declared state or national emergency. 

But while remote voting has been authorized, voting on the budget bills last week was almost entirely analog. Both the Senate and Assembly largely relied on default voting practices, which allowed members to attend session via a livestream and only show up on the floor if they wanted to vote against a bill or against their party. Most of the time, it was just the Senate and Assembly leadership and clerks who had to be physically present to run the proceedings. 

Now, with the budget process over, some advocacy groups argue that setting up a system to allow lawmakers to actually vote remotely or electronically is crucial to ensuring that they continue to legislate throughout the pandemic. “I don’t think it’s an ‘either or,’ I think the system has to be set up,” Susan Lerner, executive director of the good government group Common Cause New York, told City & State when asked whether the Legislature should move to actual remote voting for the rest of session. “We are paying them to be legislators, so it behooves them to utilize the technology that exists and do their jobs remotely, just as we are all doing our jobs remotely – those of use who are still employed.”

Both the state Senate and Assembly have taken the first steps to allowing that to happen, by passing resolutions that authorize remote voting. The Senate’s resolution says that leadership may allow senators to attend and participate in any proceeding remotely, including but not limited to video conferencing or teleconferencing. The Assembly resolution is similar, allowing leadership to vote against a bill electronically. 

In some sense, voting in the Senate and the Assembly already happens mostly by default. Because of existing rules on voting in both houses, lawmakers largely do not have to show up on the Senate or Assembly floors to register their votes – systems which worked to their advantage in the age of social distancing. The Assembly uses a system referred to as party voting, in which floor leaders for each party conference vote for their colleagues as a bloc, and anyone from that party who wants to vote against the party line had to show up on the floor to register their vote. In the Senate, a similar system of effective voting by default is used, in which senators’ votes are automatically recorded as a “yea” on bills on the non-controversial calendar, and they only have to take action if they want to vote against the bill. To do that, senators either show up on the floor to speak against the bill, or submit their “nay” vote via what’s referred to as a Rule 9 form.

That’s what state Sen. Julia Salazar said she did in order to vote against each of the Article VII budget bills. The Rule 9 form is not unlike an absentee ballot for regular elections, but is typically reserved for senators who can’t be present for a committee meeting because of specific extenuating circumstances. This past week, however, senators who didn’t want to show up to the floor to vote against a bill were able to use the form to register their vote. But even that system of voting – while technically remote – requires a physical piece of paper to be signed and returned to the Senate floor counsel in person or over email.

While voting on the budget wasn’t any more high-tech than usual, lawmakers were able to attend sessions virtually, watching live streams to monitor what was happening on the floor, some of them from their offices in Albany. In order to check in and be marked present, senators at times checked in with the Senate clerk through the video conferencing app Zoom.

But Lerner said that while the capabilities for remote voting are widely available – in different forms through companies like Zoom or the government software company Granicus – the Legislature hasn’t actually developed a system for doing it in New York. Representatives for the Assembly majority conference did not respond to a request for comment about whether any remote voting system was currently in place. And while a Senate majority spokesman referred to having the option and capacity for remote voting, they did not provide details on what technology they would use to do that.

Lerner and other proponents of actual remote voting said there were a range of systems that could allow lawmakers to participate in the rest of the legislative session from their districts and attend meetings, debate bills and register votes on legislation electronically. Zoom, for example, might be used by lawmakers to debate and speak on bills. Lerner said lawmakers could vote on bills with the software’s poll function, or by just raising their hands or voicing their votes. Possible hurdles to this would be figuring out how to make video conference proceedings available to the public in order to comply with the state’s open meetings law, as well as ensuring that all lawmakers have access to the technology.

There are also services specifically tailored to government, like the company Granicus, which offers options for live streaming public meetings and instant digital voting. Andrew Hoppin, the former chief information officer for the state Senate, has been advocating for adopting remote voting in the state Legislature, along with good government groups like Common Cause New York and Citizens Union and special interest groups like the Drug Policy Alliance and Tenants PAC. Hoppin said that the IT resources of the Legislature are more than equipped to handle a transition to remote legislating. “The New York Legislature maintains more sophisticated and well-resourced technology organizations than most states, and I’m confident that they could readily add affordable off-the-shelf software applications where needed to support these elected bodies in being fully operational while working remotely during this time,” Hoppin said in a statement last week. As others have pointed out, one remaining hurdle for remote legislating is the requirement in the state constitution that the Legislature print out physical copies of its bills.

One possible advantage of Zoom is that because of the coronavirus outbreak, most lawmakers are already familiar with it. The Assembly and Senate majority conferences used Zoom for their private conference meetings during the budget proceedings, and haven’t reported any technical failures. In fact, both state Sen. Brad Hoylman and Assemblyman Clyde Vanel said that Zoom calls were sometimes more productive than regular meetings with their conferences, as mute features cut down on lawmakers talking over each other. 

But while Zoom has become a daily constant for many people working from home, it has also attracted widespread scrutiny for questionable privacy and security practices – not only from cybersecurity experts but from states’ attorneys general, including state Attorney General Letitia James. The company has addressed some of these flaws – including fixing code that sent information about users’ devices directly to Facebook. One of the larger remaining issues is a practice called “Zoom-bombing,” in which hackers or trolls infiltrate a Zoom meeting. They might do it to disrupt a meeting or to shout racist insults or even share sexually explicit images.

While Hoylman said the Senate Democratic Conference’s Zoom meetings haven’t had any such “bombings,” he was a part of a recent Zoom meeting for the advocacy group New York Indivisible that was hacked. “It was crashed by what seemed to be fascists or neo-Nazis or some group with an agenda,” he said. “It was hard to understand.” While Zoom bombings may not have targeted the state Legislature’s conference meetings yet, Hoylman said he’s aware of that threat. “That’s a concern, that somebody could hack in – either for political espionage purposes or just to disrupt the meeting,” he said.

While these security and privacy issues remain, some caution against adopting Zoom for wider legislative use. “They haven’t shown that they really have had an appropriate security posture, and that they really have set up a system that’s secure enough to be used for the types of things like voting in the state Legislature,” said Justin Cappos, a computer science professor at New York University.

With a swell of security issues coming to light for Zoom in the past few weeks – as its users have surged because of so many people working and going to school from home – Cappos said that the company’s flaws may run deep. Cappos compared it to buying a house, then finding out that the roof is leaky or the walls start to lean. Those problems, he said, can be patched up easily enough. “But if the way you’ve architected your system is poorly done, it’s not just a matter of patching the holes that people have found,” he said. “If your architecture is flawed, it’s really hard to have a system that is going to be secure.”

Zoom, for its part, has said it is shifting its engineering resources to focus on safety and privacy. “We are deeply upset to hear about the incidents involving this type of attack and we strongly condemn such behavior,” a Zoom spokesperson said in an emailed statement, referring to the “Zoom-bombing” problem. “Starting on March 20th, we have been actively educating users on how they can protect their meetings and help prevent incidents of harassment through features like waiting rooms, passwords, muting controls and limiting screen sharing.”

Zoom’s issues aside, that doesn’t mean that remote legislating will inherently be insecure. Cappos said that there are other systems available, and that if the state Legislature decided to transition to fully remote voting, it would just have to prioritize security and privacy checks on whatever system it used.

Describing the way attendance and voting was handled for passage of the state budget, multiple lawmakers told City & State that they were satisfied with how it all played out last week but were interested in exploring options for technology that would allow them to actually debate and vote remotely. “We have to worry about a number of different things when it comes to these kinds of technologies, but we're not afraid to get 213 people to be able to use different tools to continue the people's business,” Vanel said. “This is a changing time and a new time, and I’m excited that we’re using these different technologies.”

It remains unclear whether the Legislature will reconvene in Albany after the post-budget two-week recess. At least a few lawmakers may not be especially eager to return, even if technology-based alternatives are available. After having a taste of attending session via live stream, Assemblyman Angelo Santabarbara said that lawmakers might not want to go back to the state Capitol after the budget was passed. “It’s like we rediscovered technology,” he told City & State. “Things are not going to be the same.”

With reporting by Zach Williams