Supreme Court turns away Rep. Kevin McCarthy challenge to House proxy voting during COVID-19

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WASHINGTON – The Supreme Court on Monday turned away a GOP lawsuit challenging proxy voting rules set up by House Speaker Nancy Pelosi in response to the pandemic.

The decision to not hear the case lets stand a federal appeals court ruling that said courts are barred from reviewing the internal rules of the House of Representatives.

Weeks after the World Health Organization declared COVID-19 a pandemic, the House approved a measure allowing lawmakers unable to come to Capitol Hill to designate another member as their "proxy" to cast floor votes on their behalf.

Republicans, led by House Minority Leader Kevin McCarthy, R-Calif., sued Pelosi, contending that the Constitution does not allow proxy votes. That argument rests in part on the quorum clause, which requires a majority of the House to be present in order to conduct the chamber’s business. That clause also says a group smaller than a quorum may be authorized to "compel" the attendance of "absent members."

The power to compel absent members to attend would make little sense, McCarthy told the court, if the framers of the Constitution did not expect lawmakers to vote in person.

From left, House Speaker Nancy Pelosi, Senate Majority Leader Chuck Schumer, Senate Minority Leader Mitch McConnell, and House Minority Leader Kevin McCarthy on Dec. 10, 2021.
From left, House Speaker Nancy Pelosi, Senate Majority Leader Chuck Schumer, Senate Minority Leader Mitch McConnell, and House Minority Leader Kevin McCarthy on Dec. 10, 2021.

"Nothing shook that uninterrupted tradition – not the Yellow Fever epidemic, not the burning of the Capitol in the War of 1812, not the Civil War, not the Spanish Flu, not two World Wars, not the 9/11 terrorist attacks," Republicans told the Supreme Court.

Lower federal courts never addressed that claim. Instead, a federal district court ruled that the speech or debate clause bars courts from getting involved in House voting rules. That clause says that lawmakers "shall not be questioned in any other place" for any speech or debate, terms the Supreme Court has read broadly. The U.S. Court of Appeals for the District of Columbia Circuit upheld that ruling last year.

The Constitution, Pelosi told the court, gives the House "wide discretion" to set its rules.

"In light of the pandemic and advances in modern technology, the House has reasonably authorized members to vote remotely by providing binding, precise instructions to a member on the floor," Pelosi told the court.

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The Supreme Court itself has wrestled with how to conduct its business during the pandemic. For more than a year the court held oral arguments remotely, allowing the public and journalists to listen to live audio of those arguments for the first time in its 230-year history. Even after the court returned to in-person arguments in October, several of the justices and attorneys have occasionally taken part remotely.

"The Supreme Court's refusal of House Republicans' request to overturn the dismissal of their frivolous lawsuit is a victory for the Congress, the rule of law and public health," Pelosi said in a statement. "Both 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."

A McCarthy spokesman said that if Republicans win back control of Congress in the midterm elections proxy voting would eliminated "on day one."

Proxy voting on the floor has never occurred before, though House committees used the practice as recently as 1995. Proxy votes are frequently used for committee votes in the Senate.

Contributing: Ledyard King

This article originally appeared on USA TODAY: Supreme Court refuses GOP challenge to House COVID proxy voting rules