House Republicans’ Unprecedented Lawsuit to Stop Remote Voting

On Friday, July 24, counsel for House Republicans and the general counsel of the House of Representatives appeared before Judge Rudolph Contreras of the U.S. District Court for the District of Columbia for a hearing on House Republicans’ effort to enjoin the use of the proxy voting system developed to help the chamber conduct business more safely in the midst of the pandemic. Over the course of almost three hours, the parties debated—with little interruption from Contreras—whether the plaintiffs have standing to challenge the House rule establishing proxy voting and whether the Constitution requires that members of Congress be physically present for the House to conduct official business such as votes. Contreras showed no clear preference for the arguments of either side, and made a point at the outset of the hearing to say that he remained fully “open to persuasion.”

House Republicans’ lawsuit began a little over two months ago. On May 26, Minority Leader Kevin McCarthy, scores of other Republican representatives and several constituents sued to enjoin the use of the chamber’s proxy voting system. That system establishes a mechanism to allow an absentee House member to designate another member to cast votes on their behalf during the coronavirus pandemic. Under the resolution authorizing the novel system (H. Res. 965), a representative designates his or her proxy in a signed letter transmitted to the clerk of the House. A proxy must vote or record the presence of the member whom they represent pursuant to the specific instructions that member gave them. Any individual voting by proxy will count toward the quorum needed for the House to conduct business.

So far, more than 70 House Democrats have utilized the system and designated proxies; 36 have active proxy designations. On July 29, Rep. Francis Rooney became the first House Republican to vote by proxy, over the objections of House Republican leadership.

The Republicans’ lawsuit names three defendants: House Speaker Nancy Pelosi; Clerk of the House Cheryl Johnson, who is responsible for conducting a record vote or a quorum call under House rules; and House Sergeant-at-Arms Paul Irving, who is responsible under H. Res. 965 for determining whether a public health emergency due to COVID-19 has begun and when it has ended. Once the sergeant-at-arms concludes that such an emergency is in effect, the speaker of the house may commence the renewable, 45-day “covered period” during which representatives can vote by proxy. Pelosi initiated that period on May 20 and extended it on June 29.

Minority Leader McCarthy, the lead plaintiff in the lawsuit, has described proxy voting as “a brazen violation of the Constitution” and “a dereliction of our duty as elected officials”—one that “would silence the American people’s voice during a crisis.” The minority leader has called for “rapid and robust legal relief” in the form of a permanent injunction on the proxy system.

For his part, Senate Majority Leader Mitch McConnell initially questioned the constitutionality of proxy voting, signalling in late May that he might not take up legislation passed by the House when a quorum of members was not physically present.

In their amended complaint, House Republicans allege that proxy voting violates the Constitution’s quorum requirement, the “yeas and nays” requirement, the nondelegation doctrine, and the “structure” of the founding document. At issue in the first, second and fourth of those alleged violations is whether lawmakers can be counted as “present” for the purpose of the House’s conducting official business if they are not physically gathered in the Capitol. At issue in the third alleged violation—the purported transgression of the nondelegation doctrine—is whether an absent House member’s designation of a proxy amounts to an unconstitutional delegation of that member’s voting power to another.

On June 19, the defendants moved to dismiss Republicans’ lawsuit on the basis that plaintiffs lacked standing to sue, teeing the district court up to decide the case without reaching the merits. But at oral argument on July 24, Judge Contreras gave the parties an opportunity to discuss at length both the question of standing and the constitutional meat of the issues.

The House Republicans attempt to demonstrate injury, and thus standing to sue, by arguing that proxy voting dilutes their voting power. Because the proxy system permits a single representative to serve as a proxy for up to ten absent representatives, and because the plaintiffs believe that proxy voting is constitutionally invalid, they argue in their amended complaint that H. Res. 965 allows “a single physically present Member of the House to vote up to 11 times on legislation” (emphasis in original)—casting one valid vote and ten invalid ones. The “inescapable mathematical result” of this system, the complaint continues, “is the dilution of voting power of those Members who have not been given (or, like the Representative Plaintiffs, refuse to accept) proxies.”

At the July 24 hearing and in their reply memorandum of law, the plaintiffs offered a hypothetical to illustrate the claimed dilution of House Republicans’ voting power. Were 200 members to vote on a bill in person and 50 to vote by proxy, the plaintiffs argue, the strength of the physically present member’s vote would decrease

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