Federal Judge Dismisses House GOP Lawsuit Seeking to Block Proxy Voting During Pandemic

August 7, 2020 Updated: August 7, 2020

A federal judge has dismissed a lawsuit filed by House Republicans seeking to overturn a system of voting that allows members to vote remotely by proxy during the COVID-19 pandemic.

Judge Rudolph Contreras of the U.S. District Court of D.C. ruled on Thursday that it could not intervene in the matter because of Congress’s immunity under the Speech or Debate Clause of the Constitution. The clause states that “for any Speech or Debate in either House” members of Congress “shall not be questioned in any other place.”

The purpose of the clause is to protect the independence of the legislative branch by preventing intrusions by the executive or judicial branches. It also bars judicial or executive processes that may constitute a “distraction” or “disruption” to a member’s representative or legislative role.

In May, House Republican leader Kevin McCarthy (R-Calif.), other Republican members, and constituents sued House Speaker Nancy Pelosi (D-Calif.) in May, alleging the move to allow proxy voting was unconstitutional.

Pelosi announced in May that the House would begin a 45-day period of “remote proceedings,” which would include proxy voting on the House floor, allowing members who are unable to be physically present at Capitol Hill due to the CCP virus pandemic to designate another lawmaker as their “proxy” and cast votes on their behalf.

McCarthy said the new rules are unconstitutional because the Constitution requires a “quorum,” of lawmakers to be physically present in order to conduct business.

It also argues that changes to how the House votes were not enacted amid the Yellow Fever of 1793, the Civil War, the burning of the Capitol during the War of 1812, the Spanish Flu of 1918, or the 9/11 terror attack, noting that “congress has never flinched from its constitutional duty to assemble at the nation’s capital and conduct the people’s business.”

Contreras, an Obama appointee, did not reach the point of addressing the merits of the case due to the constitutional barrier and added that “the House unquestionably has the authority, under the Constitution, to ‘determine the Rules of its Proceedings.'”

“The Court can conceive of few other actions, besides actually debating, speaking, or voting, that could more accurately be described as ‘legislative’ than the regulation of how votes may be cast,” Contreras said (pdf).

Pelosi welcomed the news in a statement on Thursday. “Remote voting by proxy is fully consistent with the Constitution and more than a century of legal precedent, including Supreme Court cases, that make clear that the House can determine its own rules,” she said. “The nation is in the middle of a dangerous pandemic and the House of Representatives must continue to work.”

McCarthy indicated in a statement on Friday that he intends to appeal the decision.

“Speaker Pelosi’s proxy voting scheme dilutes the voting power of Members of Congress in violation of the Constitution. It dilutes the representation of constituents across America, and purports to allow a Member of Congress to give his or her vote to another member,” he wrote.

“We have already seen House Democrats exploit this system and neglect their official duties. One member wrote that he was ‘physically unable to attend proceedings in the House Chamber due to the ongoing public health emergency, and I hereby grant the authority to cast my vote by proxy…’ only to drive several hours away from his district to attend a space launch.”

“While Congress does write its own procedural rules—and we should—we cannot write rules that violate the Constitution. House Republicans look forward to appealing this decision.”

Katabella Roberts contributed to this report.

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