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DC Circuit Strikes Down GOP Challenge to Proxy Voting

July 20, 2021 by Dan McCue
Dusk falls over the Capitol, Monday, Dec. 21, 2020, in Washington. Congressional leaders have hashed out a massive, year-end catchall bill that combines $900 billion in COVID-19 aid with a $1.4 trillion spending bill and reams of other unfinished legislation on taxes, energy, education and health care. (AP Photo/Jacquelyn Martin)

WASHINGTON  – A Republican-led challenge to a House resolution allowing members to vote remotely during the COVID-19 pandemic ended abruptly Tuesday after the D.C. Circuit held it had no authority to review a “core” legislative act of Congress.

House Resolution 965 was adopted in May 2020 to allow voting by proxy for the duration of the coronavirus pandemic. It was initially meant to last a mere 45 days, but has been extended numerous times, with the most recent extension expiring Aug. 17.

A federal district court tossed the lawsuit last summer, but GOP members of Congress appealed, arguing House members must be physically present in order to reach a quorum and vote. 

To bolster their argument, the plaintiffs pointed to past examples where the House did not invoke proxy voting, like the 1918 influenza pandemic.

But in an opinion written by Chief Judge Sri Srinivasan and joined by U.S. Circuit Judges Justin Walker and Judith Rogers, the appellate panel agreed with the lower court that House officials are immune from the challenge under the U.S. Constitution’s speech and debate clause, which blocks legal challenges tied to legislative actions.

“Because we agree with the district court that the Clause bars consideration of the plaintiffs’ suit, we have no need to consider whether they have standing,” Srinivasan  wrote.

“The challenged Resolution enables members to cast votes by proxy, and the ‘act of voting’ is necessarily a legislative act,” he continued. “Indeed, we are hard-pressed to conceive of matters more integrally part of the legislative process than the rules governing how members can cast their votes on legislation and mark their presence for purposes of establishing a legislative quorum.”

Srinivasan also pointed to the circuit’s 1975 decision in Consumers Union of the United States. v. Periodical Correspondents’ Association, which challenged congressional rules requiring members of the press to apply to gain access to House and Senate press galleries. 

The circuit decided the challenge was similarly barred by the Constitution’s speech and debate clause.

“This case, if anything, more centrally involves legislative acts than did Consumers Union,” he wrote. “If the Speech or Debate Clause covers the administration of seating in the press galleries, in short, it must also cover the administration of voting by members.”

Among those applauding the ruling Tuesday afternoon was Rules Committee Chairman James P. McGovern, D-Mass., who said the decision upheld “what the Constitution and more than 100 years of legal precedent have made clear: that the House has the ability to set its own rules.

“Democrats and Republicans have utilized proxy voting during this pandemic to protect public health and keep this institution functioning,” he continued. “The fact that the minority leader is suing to prevent Congress from safely conducting the people’s business is unfortunate but emblematic of the way he approaches his role here. If Minority Leader [Kevin] McCarthy truly cares about this institution, he would drop this frivolous lawsuit and focus on what is actually threatening its integrity – those who spread dangerous conspiracy theories and downplay what happened on Jan. 6.”

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