House Republicans File Lawsuit to Block Democrats' Proxy Voting Plan As Unconstitutional

What’s the story?

• House Republicans on Tuesday filed a lawsuit that would challenge the constitutionality of the temporary proxy voting plan enacted by House Democrats two weeks ago. 
• The news was first reported by the Wall Street Journal and may throw a wrench into the House’s proceedings depending on how the court responds, as the proxy voting rules are expected to be put into use for the first time this week as early as Wednesday. Over 50 Democrats have made plans to vote by proxy, while no Republicans are planning to vote by proxy. 
• The rules, which were enacted in a 217-189 vote without bipartisan support, allow one member in attendance to cast proxy votes for up to 10 members who aren’t in attendance based on written instructions provided to them by the absentee lawmaker, and lawmakers voting by proxy would count towards the quorum requirement. 
• The suit is to be filed in a District of Columbia federal district court by a group of more than 20 Republican lawmakers led by Minority Leader Kevin McCarthy (R-CA) & Minority Whip Steve Scalise (R-LA) plus four constituents. 
• It contends that Democrats’ temporary rules changes violate the Constitution’s requirement that a majority of the chamber constitute a quorum for the purpose of doing business and diminishes the representation of constituents whose reps vote by proxy.

What does the Constitution say about quorums in Congress?

• Article I, Section 5 of the Constitution addresses how the House & Senate determine the qualifications of lawmakers and establishes what a quorum requires:

“Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business”

• When the House is at its full complement of 435 representatives, a majority is 218 lawmakers. At present, there are 431 representatives in the House, so a majority for the purpose of a quorum is 216 representatives.
• In past cases involving the rules of the House & the Senate, federal courts have generally deferred to each chamber as it chooses to set its own rules. A later clause of Article I, Section 5 of the Constitution reads:

“Each House may determine the rules of its proceedings”

• House Democratic leaders commissioned a Rules Committee report examining remote options, which found that proxy voting:

“[C]ould raise some of the same constitutional questions as remote voting  ― namely, whether a Member must be physically present in the chamber to vote. However, many scholars argue that the House has the right to determine its own rules, and that the courts would be unlikely to question the process the House used to pass a bill, if the House determined that it was within the bounds of the House rules. And unlike remote voting, proxy voting has a basis in parliamentary tradition and is not accompanied by the same security and technology concerns.”

What are both sides saying?

• House Minority Leader Kevin McCarthy (R-CA) tweeted the following announcement of the lawsuit:

• House Speaker Nancy Pelosi (D-CA) offered the following statement on Republicans’ 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. 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.”

— Eric Revell

(Photo Credit: Wikimedia / Creative Commons)