Why legislators want more options than aye, no or not voting

For lawmakers who are loath to vote “no,” Adam Gray has become something of a rallying cry for legislative reform.

Twice, California Democrats have deemed the former Assemblymember their best bet to take the highly competitive 13th Congressional District. And twice Republicans have hammered him for an unremarkable aspect of his legislative record.

“You paid his salary and benefits most of his adult life,” said the narrator of an ad run by a Republican super PAC in 2022, when Gray first ran (and lost) to John Duarte. “In return, he skipped over 150 votes in the state Assembly. Eighty percent of the time, Gray was physically at the capitol, but didn’t bother to vote.”

The 30-second spot by the Congressional Leadership Fund damned Gray for his “taxpayer salary, no show job.”

“It’s the Sacramento way,” the narrator said. “It’s the Adam Gray way.”

A year later, when Gray announced he wanted a rematch with Duarte, the National Republican Congressional Committee made a point of highlighting his voting record again.

“Central Valley voters rejected Adam Gray after he betrayed them to collect lavish special interest perks,” spokesman Ben Petersen said in an August 2023 press release. “In Sacramento, Gray skipped over 150 votes — and when he did show up, Gray drove up inflation, raised the gas tax and waged war on the Valley’s way of life.”

The press release went on to note that “Gray skipped over 150 votes while collecting a six-figure taxpayer paycheck” and “voted to raise the gas tax by 43 percent, then skipped a vote on his own bill to suspend the gas tax.”

Duarte beat Gray in two consecutive elections, first by a mere 564 votes in 2022, then by about 2,000 this year (with 87 percent of the vote counting; an estimated 28,000 votes left to be counted as of Sunday morning). In races that close, every negative could be pivotal – even though in this particular case anybody who is familiar with Sacramento knows that not voting 150+ times in a single legislative cycle is hardly unusual let alone over 10 years, which is what the Republicans were actually dinging Gray for.

Indeed, legislators in both parties openly admit they frequently don’t vote on bills not because they’re lazy, as the Congressional Leadership Fund implied, but because “no” votes are taken personally by their colleagues. Bills and other motions in Sacramento can only pass if they receive the requisite number of “aye” votes. By laying off on a vote, legislators do nothing to help a bill’s prospects, but also avoid angering its author.

However, the current system for documenting legislative votes doesn’t allow for any nuance. The legislatures voting records have only three options: “aye,” “no” or “no vote recorded,” which can include instances when lawmakers really do miss a vote as well as when they are present but have consciously decided to abstain.

Because the “no vote recorded” category encompasses multiple behaviors – including behavior legislators can get criticized for, a la Gray – there’s a quiet push to change the way votes are recorded to include at least one other category, abstention.

“To me, it makes sense to make a distinction between absent (and) abstention,” said Sen. Anthony Portantino, the termed-out Democrat from La Cañada Flintridge, who says he asked the Secretary of the Senate to make that change about five years ago. “The record should be accurate,” he said.

The disappearing ‘no’ vote
Both Democrats and Republicans opt to not vote on certain bills and other motions out of courtesy to their colleagues. But as members of the minority party who defines itself politically largely in its opposition to the party in control, Republicans still vote “no” quite a bit.

“To me, it makes sense to make a distinction between absent (and) abstention….The record should be accurate.”

Democrats, with their supermajority control of both houses, don’t – which makes them particularly vulnerable to the kind of criticism Gray faced in his two campaigns for Congress.

Consider these stats from the last session. Ninety-three of the 120 legislators who served in 2023-24 were Democrats. (That’s 78 percent for those wondering.) Four thousand, eight hundred and twenty-one bills were introduced in those years. During that time, 499,655 votes were recorded on both floors and in committee hearings.

And yet, despite those numbers, Democrats in the legislature voted “no” a grand total of just 1,010 times the entire session, representing just 0.2 percent of all votes recorded during the cycle.

A Capitol Weekly analysis of legislative votes data found seven Democrats who never voted “no” in 2023-24: Assemblymembers Joaquin Arambula, Lisa Calderon, Mike Fong, Jesse Gabriel, Eduardo Garcia, Chris Holden and former Speaker Anthony Rendon.

Ten other Assembly members only voted “no” once during the session. Forty-three Democrats in the Senate and the Assembly kept their noes for the session to single digits. No Democrat topped triple digits, with the highest (current) Democrat voting “no” being Sen. Steve Glazer of Contra Costa, who did it 73 times.

No Republican had less than 200 “no” votes for the year (with Sen. Marie Alvarado-Gil of Jackson, the former Democrat, recording the least at 218). Republican Assemblymember Diane Dixon of Newport Beach had the most “no” votes in the legislature for the year at 1,343.

Democrats have been trending this way for some time in the legislature. While the overall percentage of no votes recorded per cycle (from a low of 4 percent in 2015-16 to a high of 8 percent in 1999-2000, 2009-10, 2021-22 and 2023-24) and NVRs by Democrats in particular (from a low of 2.2 in 20215-16 to a high of 4.5 percent in 2023-24) has fluctuated up and down over the last 13 legislative cycles, the overall percentage of “no” votes and “no” votes by Democrats has generally headed down.

In the 1999-2000 cycle, “no” votes overall accounted for 10 percent of all the votes cast, while the percentage of “no” votes by Democrats stood at 1 percent. Democrats cast nearly 8,000 noes that cycle. Thirty Democrats topped triple digits in their “no” votes, with Sen. Patrick Johnston of Stockton recording 477.

By the 2015-16 cycle, the overall percentage of “no” votes had dropped to 7 percent of all votes cast, with the percentage of “no” votes by Democrats falling to 0.7 percent. Seven Democrats topped triple digits of “no” votes, with Assemblymember Mike Gatto of Los Angeles registering 234.

The numbers dropped more precipitously starting during the 2019-20 cycle, when the Assembly changed its rules to allow its committee chairs to decide whether to bring a bill up for consideration. Coinciding with that change, the number of “no” votes, and “no” votes by Democrats, fell off.

In 2017-18 cycle, there were 42,238 “no” votes total cast. In 2019-20, there were 22,395.

In 2021-22, for the first time in 12 sessions, five Assembly Democrats (who all cast hundreds of votes that cycle) managed to go two years without voting “no” even once.

The pros and cons of abstention
Former Assembly Republican Leader Kristin Olsen-Cate told Capitol Weekly that when she was in the legislature, members felt not voting on a bill they opposed, rather than outright voting “no,” was considered less offensive to colleagues you wanted to maintain a good relationship with.

As Portantino noted, bills have their author’s name on them and at least some legislators take an outright rejection of their bill as a personal afront. He also said there seems to be an “urban legend” circulating among legislators that the less “no” votes a bill receives, the more likely it will get signed into law.

He said it’s not uncommon for the author of a bill to ask legislative opponents to lay off, rather than outright vote “no,” to avoid encouraging other legislators vote “no” as well.

“A hard ‘no’ is like a slap in the face to the author,” said Hannah-Beth Jackson, the former Democratic state senator. “It’s an extraordinary strong statement.”

Jackson said not voting on a bill – abstaining – is also a way for legislators to walk the line between honoring their constituents’ views while also respecting other lawmakers. Say one of your valued colleagues has authored a bill that your district doesn’t support. Laying off allows you to reflect your constituents’ wishes while also not giving your political ally a black eye.

“A hard ‘no’ is like a slap in the face to the author….It’s an extraordinary strong statement.”

On the other hand, Republican Sen. Brian Dahle of Bieber dismisses much of this talk as “gamesmanship” and a way for the Democrats to control members of their own party.

“An abstention is a ‘no’ vote,” he said. Laying off is just a form of political cover, Dahle said, pointing the example of Republican Sen. Shannon Grove’s SB 14 regarding penalties for child sex trafficking, which was initially killed in the Assembly Public Safety Committee in 2023 due to a lack of “ayes,” not because of outright noes.

“Behind the scenes, people will say, ‘I don’t like this,’” Dahle said. “Well, stand up! Be your own person.”

Still, there is little disagreement that legislators’ schedules are busy and that it’s not unusual for them to have to miss votes in one committee because they’re presenting a bill in another. It’s for this reason that some argue the tracking of legislative votes needs to be more nuanced.

“It’s an excellent idea,” said Dan Schnur, the veteran Republican strategist.

He said voters deserve transparency into the voting behavior of their representatives. If legislators are missing a lot of votes because they’re doubled booked, Schnur said voters should know that. He said voters can understand the complexities of the job and that legislators shouldn’t fear they could misconstrue why they had a lot of missed votes.

For that reason, Schnur said he’d support adding an abstention category to the official voting record. But he also made clear that he doesn’t think abstaining to spare a colleague’s feelings is appropriate. He said public policy needs to be debated openly, so the public can understand how policies are shaped. He said legislators shouldn’t be worrying about feelings.

“That’s very sweet,” Schnur said. “That’s not the way politics is supposed to work.”

Likewise, Portantino is less concerned about “no” votes, but thought differentiating whether no vote was recorded due to abstention or absence was important because it affects how special interests grade legislators on their issues. If a legislator misses a vote, it’s typically not counted against a legislator’s grade, he said. But if a legislator abstains, it does.

Those grades matter to some legislators and Portantino said it’s not fair for lawmakers to be dinged for abstaining when in fact they were absent.

At the same time, as apparently illustrated by Gray, there seems to also be a fear that legislators could be dinged for being absent when they in fact were abstaining, creating further incentive for more nuanced vote tracking.

It’s an interesting debate, said Rob Stutzman, a Republican campaign consultant. But he wasn’t sure changing the voting tracking system ultimately would solve many problems for legislators.

“‘I cast a strong abstention!’” he said, mockingly.  “You didn’t get elected to abstain! I can assure you, they’ll still get criticized.”