House Republicans’ constitutional challenge to COVID-19-related proxy-voting rules finally ran out of steam Monday, when the Supreme Court declined to hear Minority Leader Kevin McCarthy’s appeal of lower court rulings that dismissed the case.
Dozens of House Republicans and several constituents filed the lawsuit in May 2020 to stop Speaker Nancy Pelosi from allowing members to vote on behalf of those who could not safely travel to the Capitol to vote during the pandemic. Dozens more Republicans joined in.
A district court judge in Washington dismissed the lawsuit in August 2020, ruling that Pelosi and other defendants are immune under the Speech or Debate Clause of the Constitution. A federal appeals court agreed in July 2021.
By the time McCarthy appealed to the Supreme Court last year, of the 160 Republicans House members who had joined the lawsuit, only the California Republican and Rep. Chip Roy of Texas remained, lawyers for the House pointed out in a brief.
The reason for that dwindling number, the House lawyers wrote, was “many of the original Member plaintiffs have relied on the rules to vote by proxy or served as the proxy for their colleagues, in some cases before exiting the lawsuit.”
The House hammered that point for the justices, using an example of how the proxy-voting process worked on a Nov. 1 vote on a bill to extend federal recognition to the Lumbee Tribe of North Carolina.
Tennessee Republican Rep. Chuck Fleischmann voted "no," and voted by proxy for Florida Republican Rep. Gus Bilirakis, Tennessee Republican Rep. Scott DesJarlais and Mississippi Republican Rep. Steven M. Palazzo. Rep. Tom Cole of Oklahoma, the top Republican on the House Rules Committee, voted "yes" and voted by proxy for Texas Republican Rep. Kay Granger and Oklahoma Republican Rep. Markwayne Mullin.
“Notably, Representatives Fleischmann and Cole, as well as the five Members who voted by proxy, were all former plaintiffs in this case,” the House lawyers told the Supreme Court.
McCarthy’s appeal to the Supreme Court noted that the rules allow a member to cast the votes for 10 absent members, which means it takes no more than 20 present members to do the business of the House.
When McCarthy asked the Supreme Court in September to revive the case, he noted that more than 300 members had submitted letters that designated other members as proxies, that members have voted “present” by proxy and that proxy votes have determined the outcome of legislation.
“And yet, this patently unconstitutional practice has and will continue to go unchecked,” the petition stated.
McCarthy argued that the proxy-voting scheme violates various constitutional provisions that require members to be present to do business, and violates a constitutional doctrine because it allows a member to give legislative power to another member.
The U.S. Court of Appeals for the District of Columbia Circuit never got to the merits of that argument. That court ruled that the proxy scheme is an integral part of the House’s own rules for voting, and courts have long given deference to Congress to implement its own rules.
“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,” the D.C. Circuit opinion states.
The Supreme Court let that ruling stand in a one-line order.
McCarthy, through a spokesperson, said that members of Congress should show up to work on behalf of their constituents, and Republicans would eliminate proxy voting on the first day if they regain control of the House.
Pelosi called the lawsuit “frivolous” in a news release, and said that “the Constitution and more than a century of legal precedent make clear that the House is empowered to determine its own rules — and remote voting by proxy falls squarely within this purview.”
“With this failed lawsuit, Republicans have worked to recklessly endanger the health of colleagues, staffers and institutional workers,” and fought to score political points, Pelosi said.“They do so with great shame and hypocrisy,” Pelosi said, noting that more than half of the Republican Conference designated a proxy so they could vote remotely last year alone.