On Appeal, House Republicans Press Forward With Legal Challenge to Proxy Voting

When the U.S. House of Representatives adopted a proxy voting system in May to allow members to vote remotely during the coronavirus pandemic, Republican lawmakers had a lot to say about it. House Minority Leader Kevin McCarthy called the system an “unconstitutional power grab.” Rep. Liz Cheney described it as an “abuse of power.” And Rep. Jim Jordan said it was “scary stuff.”

While the House’s embrace of proxy voting was neither especially sinister nor the product of a Democratic power play, the system has been the subject of a months-long legal challenge brought by House Republicans and several of their constituents. In late May, the coalition sued House Speaker Nancy Pelosi, Clerk of the House Cheryl Johnson and House Sergeant at Arms Paul Irving in the U.S. District Court for the District of Columbia in an effort to enjoin the use of proxy voting. After losing on jurisdictional grounds, Republicans sought to salvage their case, known as McCarthy v. Pelosi, on appeal.

During a fast-paced telephonic argument before the U.S. Court of Appeals for the D.C. Circuit on Nov. 2, the plaintiffs urged a three-judge panel to allow their challenge to move forward. But the defendants fought spiritedly to prevent that from happening. Over the course of roughly 70 minutes, Judges Sri Srinivasan, Judith Rogers and Justin Walker peppered Charles Cooper, the counsel for House Republicans, and Douglas Letter, the general counsel of the House of Representatives, with questions. Cooper faced the lion’s share of the panel’s inquiries. The veteran attorney confronted the unenviable task of convincing the circuit not only to reverse the district court’s dismissal of the case but also to engage with the merits of the plaintiffs’ lawsuit and hold that proxy voting is invalid.

Although Rogers and Walker entertained a brief discussion on the merits, the court focused overwhelmingly on the issues of whether the case is justiciable and whether the plaintiffs have standing to sue. The panel’s assiduous attention to those topics suggests that they, like the district judge, will decline to rule on the constitutional questions raised in the lawsuit.

The House adopted the proxy voting system at issue in McCarthy on May 15, almost two months after a number of lawmakers fled Capitol Hill to avoid gathering en masse and to slow the spread of the novel coronavirus. The proxy system, enacted via H. Res. 965, established a mechanism that allows an absent House member to designate another member to cast votes on his or her behalf during the pandemic. Under the authorizing resolution, a representative designates his or her proxy in a letter submitted to the clerk of the House. Proxies must vote or record the presence of the members whom they represent pursuant to the specific instructions those members gave them. And any individual who votes by proxy counts toward the majority the House needs for a quorum.

On May 26, House Republicans initiated their legal challenge to proxy voting. They sought to enjoin the system’s use on the grounds that it violates the Constitution’s quorum requirement, the “yeas and nays” requirement, the nondelegation doctrine and the “structure” of the founding document. At the heart of their case is the assertion that the Constitution requires members of Congress to be physically present for the House to conduct official business such as votes. Because proxy voting allows members to vote and be counted as “present” when they are not physically gathered in the Capitol, the plaintiffs argue, the system is unconstitutional. At oral argument, Rogers referred to this assertion as the idea that members must have “boots on the ground” or “feet on the soil” for their votes to be considered validly cast.

House Republicans name three defendants in their lawsuit: Speaker Pelosi, Clerk of the House Johnson and House Sergeant at Arms Irving. Under House rules, Johnson is responsible for conducting record votes and quorum calls. And under H. Res. 965, Irving is tasked with determining whether a “public health emergency” due to the coronavirus “is in effect.” Once he determines it is, Pelosi may commence the renewable 45-day “covered period” during which members can vote by proxy. Pelosi first initiated this period on May 20 and has extended it several times since. She did so most recently on Nov. 13, allowing members to continue voting by proxy through Dec. 31.

Although the plaintiffs urged the district court to permanently enjoin proxy voting because the practice allegedly violates the spirit and letter of the Constitution, Judge Rudolph Contreras never decided that issue. Rather, in a thorough opinion issued on Aug. 6, Contreras dismissed the plaintiffs’ case on the ground that the Constitution’s Speech or Debate Clause renders Pelosi, Johnson and Irving immune from civil suit for their administration of the proxy system.

The case law on the issue is clear, Contreras opined. Both the U.S. Supreme Court and the D.C. Circuit have held that the Speech or Debate Clause gives members of Congress and congressional aides and officers absolute immunity from civil suit for their performance of all “legislative acts.” In Gravel v. United States, the Supreme Court explained that an act is “legislative” if it is “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Subsequently, in Consumers Union v. Periodical Correspondents’ Association, the D.C. Circuit held that the enforcement of congressional rules by congressional officers (such as the sergeant at arms) falls “within ‘the sphere of legislative activity’” protected by the Speech or Debate Clause.

In his opinion, Contreras identified Consumers Union as the pre

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