Is voting present by proxy an unconstitutional oxymoron?

We’ve argued that the House’s recent move to count proxy votes towards a quorum is unconstitutional, and now a court might weigh in on the issue. Several House Republicans, including Leader Kevin McCarthy, Whip Steve Scalise and Conference Chair Liz Cheney, have filed a lawsuit against Speaker Nancy Pelosi, House Clerk Cheryl Johnson, and Sergeant at Arms Paul Irving to put a stop to proxy voting during the coronavirus pandemic. Four constituents of some of the House Republicans have joined in the lawsuit as well. The lawsuit was filed in the U.S. District Court for the District of Columbia.

Earlier this month, the House adopted H.Res. 965, which allows Representatives to cast votes on behalf of their absent colleagues during the coronavirus pandemic. According to this new rule, the Speaker may declare a period in which Members may cast proxy votes if the Sergeant at Arms notifies her that there is a state of emergency due to the coronavirus pandemic. In that case, Members may ask a colleague to cast proxy votes on their behalf. Members who are assigning their proxies to another must send a letter certifying this to the Clerk of the House. The Member who assigns the proxy must direct the assignee on how to vote on each question that is put to the House. Proxy votes will be counted towards a quorum.

The plaintiffs allege that the U.S. Constitution requires that Congress meet in person, and in their complaint, they walk through the various provisions that either explicitly require an in-person presence or imply it. “It is simply impossible to read the Constitution and overlook its repeated and emphatic requirement that Members of Congress actually assemble in their respective chambers when they vote, whether on matters as weighty as declaring war or as ordinary as naming a bridge,” they conclude.

In addition to citing the text of the Constitution, they note that even during previous crises that would make in-person meetings hazardous, Congress nonetheless continued to convene in the capital city. For instance, they note that during the 1793 Philadelphia Yellow Fever epidemic, some Members of Congress wanted to move the nation’s capital to another city, but the Congress would first need to meet in Philadelphia to agree to the move. Congress has always met physically even during emergencies such as the Spanish Flu Pandemic of 1918, the War of 1812 and 9/11. Congress’ actions during previous catastrophes lead the plaintiffs to conclude, “The unbroken American tradition of in-person assembly and voting in Congress confirms the unambiguous text of the Constitution: proxy voting by Members of the House of Representatives is unconstitutional.”

For the plaintiffs, proxy voting is not merely an issue of constitutional niceties. They say that proxy voting concretely injures them by diluting the votes of Members of Congress who are present (but not casting votes for others). They argue that because H.Res. 965 allows each Member to receive the proxies of up to 10 other Members, a proxy bearer may have up to 11 times the voting power of Members who choose to vote in person. By extension, the constituents who are suing say that their voting power is diluted as compared to the constituents of Members who receive proxies. Furthermore, they say that since legislation that is passed using proxy votes will likely be liable to “constitutional attack”—yea, even “doomed to constitutional invalidity”—they “may be harmed by the uncertainty and potential invalidity” of any such laws.

H.Res. 965 requires that the Speaker, the Clerk and the Sergeant at Arms each take various actions that lead to proxy voting being conducted. For instance, the Sergeant at Arms must notify the Speaker that there is a state of emergency due to the coronavirus pandemic, the Speaker must authorize proxy voting, and the Clerk must receive letters from Members assigning their proxies to another. The plaintiffs are asking the court to order the Speaker, the Clerk and the Sergeant at Arms to refrain from taking the various actions that H.Res. 965 requires to allow the House to vote by proxy.

Not surprisingly, Speaker Nancy Pelosi criticized the lawsuit. “The House made its will clear two weeks ago when it voted to implement remote voting by proxy and other necessary measures to ensure that Congress can continue to protect lives and livelihoods,” she said in a statement. “The House’s position that remote voting by proxy during a pandemic is fully consistent with the Constitution is supported by expert legal analyses.  Further, the Supreme Court made clear over a century ago that the Constitution empowers each chamber of Congress to set its own procedural rules.”

The House first voted with proxy votes on the afternoon of Tuesday, May 27, so the constitutional questions are no longer theoretical. The House held three roll call votes, and over 70 Democrats voted by proxy. No Republican voted by proxy. For each recorded vote, the Congressional Record notes which Members voted by proxy and who served as their designated proxies. Although H.Res. 965 specifies that proxy votes count towards a quorum, more than a majority of Members were present in person, leaving no doubt that the House satisfied the Constitution’s quorum clause.

 As this case makes its way through the legal system, we will provide be sure to provide updates.

For additional context, please see our previous posts on the issue:

Voting Present by Proxy Is an Unconstitutional Oxymoron

The Quorum, the Constitutional Convention, and the Coronavirus: Some Questions