In a March report weighing options for how Congress could hold votes during the COVID-19 pandemic, the House Rules Committee flagged one concern for both remote voting and proxy voting systems, which the House had never before adopted.
“The constitutionality of remote voting is an untested principle,” the report’s authors wrote, and “if challenged, remote voting would be a novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality.” Proxy voting, meanwhile, in which an out-of-town member can authorize another member as a proxy to cast their vote for them, “could raise some of the same constitutional questions as remote voting—namely, whether a Member must be physically present in the chamber to vote.”
In other words, no matter what system the House might adopt to enable members to vote without being present on the floor, it would be unprecedented, and therefore it could expose the chamber and its body of work to new frontiers of litigation—even if the House generally has the right to make its own rules, and proxy voting specifically has precedent for use in House and Senate committees. The House adopted a system of proxy voting, anyway, on a party-line vote in mid-May.
Right on cue, House Republican leader Kevin McCarthy, along with 20 other GOP members and four of their constituents, filed a lawsuit in federal court challenging the new system on Tuesday, one day before the first proxy votes were even scheduled to be cast.
“For more than 231 years, never have we seen a proxy vote on the floor of the House,” McCarthy said at a Wednesday morning press conference, flanked by another dozen or so co-plaintiffs. “This challenges the Constitution only to protect and empower a Speaker. It violates the Constitution. It’s a dereliction of duty by its members.
“Yes, the House can make their rules,” he added, “but they cannot make something different than the Constitution says.”
The constitutional questions in the suit were precisely what the Rules Committee anticipated. Article I of the Constitution, for example, writes of Congress as “meeting,” or members “assembling,” “sitting,” or being “present.” The GOP lawsuit cites both “Samuel Johnson’s seminal dictionary” and “Noah Webster’s important dictionary” to prove that the drafters of the Constitution, in using these words, intended for Congress to perform its essential actions exclusively in person, and in a shared geographical space. It assumes hostility on the founders’ part toward using technological advances, even during emergency times, that they could not have foreseen.
It’s true enough that Noah Webster, working half a century before the invention of the telephone, failed to include teleconferencing among his definitions, and that James Madison did not imagine the Constitution granting the legislative branch permission to vote by Zoom. Where the lawsuit goes haywire, though, is in proving injury to the plaintiffs. If a member in California authorizes a Maryland member to cast their vote for them, how does that harm Kevin McCarthy? On this question, both the suit and the plaintiffs’ rhetoric take liberties in describing how the new proxy system would work.
The suit argues that the proxy voting system leads to the “dilution of voting power of those Members who have not been given (or, like the Representative Plaintiffs, refuse to accept) proxies.”
“Indeed, because 55 Members have already given their proxies to other Members, Representative Plaintiffs’ voting power has already been diluted,” the plaintiffs argue. “For example, Leader McCarthy’s vote currently counts for 1 vote, while Representative Raskin’s vote currently counts for 7 votes.” (Maryland Rep. Jamie Raskin, whose district abuts the District of Columbia, has been a popular vote-handling choice for out-of-town members.) Similarly, they write, the four constituent plaintiffs of these members are injured because their representative’s power has been “diluted.”
Members at the Wednesday press conference were playful with this notion that some members would have more votes than others. McCarthy spoke about how one member “will vote for five different states,” and how, with more than half of California Democrats filing to vote by proxy, “19 million people in California will not have a voice.” Louisiana Rep. Mike Johnson, who prior to Congress litigated cases in federal court, spoke of how one of the constituent plaintiffs in the suit who lives in his district, Lorine Spratt of Shreveport, “is deeply upset about this. She’s a patriot, she votes in every election, and she is afraid that our votes are being watered down, and that the Constitution’s being violated, and she has a right to be heard.”
They would have a real point, and Spratt would have serious reason to be worried, if the proxy voting rules allowed for something completely different from what they do allow. The rules don’t allow the use of a “general proxy,” in which an authorized member could vote however they wanted on another members’ behalf. Proxies have no discretion in casting another member’s vote. “Prior to casting the vote or recording the presence of another Member as a designated proxy under this resolution,” the bill text reads, “the Member shall obtain an exact instruction from the other Member with respect to such vote or quorum call,” and the member casting the proxy vote also must announce it in the chamber. Jamie Raskin’s vote does not count for seven votes. It counts for one, and there will be records of each vote he casts on behalf of others, who will be held accountable for their own votes.
When I asked Johnson after the press conference about the “dilution” argument, he conceded that it was “secondary” to the thrust of the suit. But isn’t it the grounds of injury to him, a plaintiff?
“It’s one of them,” he said. “The other is the injury to the Constitution itself.”
Like the House Republicans, I don’t like proxy or remote voting much, and hope it goes away as soon as the pandemic is reasonably contained. McCarthy suggested in his remarks that a lot of the 71 Democrats who had, by Wednesday morning, authorized a proxy could have shown up and just didn’t feel like making the trip. Probably! Throughout the pandemic, too many rank-and-file members have been content with letting Speaker Nancy Pelosi negotiate each major relief package on their behalf, before dumping the finished product in their laps shortly before the vote. That’s not how a healthy legislative body operates.
But House Republicans are only filing this suit because it’s a political opportunity. As the House minority, which has zero power in Washington so long as the House majority can supply 218 votes of its own, they have little else to do. The prevailing incentive of the minority, in the absence of actual work, is to make the majority look like corrupt, incompetent cheats ahead of the next election, which is never that far away. It’s why McCarthy and the rest of Republican leadership, who entertained discussions with Democrats earlier in the pandemic about devising some sort of remote option for members, abandoned those discussions in favor of a more hostile posture. The proxy voting system doesn’t “dilute” House Republicans’ votes, it leaves them with the same vote share they had previously: the smaller one. To court!
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