Democrats’ risky plan to ensure Congress can vote during the pandemic, explained

No one can be sure of whether House Democrats’ plan to allow “proxy voting” is constitutional.

Earlier this month, the House voted, almost entirely along party lines, to permit members of Congress to cast votes by proxy so long as the coronavirus pandemic makes it dangerous for many members of Congress to travel to Washington. On Tuesday, 21 House Republicans filed a lawsuit claiming that the new House rule permitting proxy voting is unconstitutional.

The case is McCarthy v. Pelosi.

Under the new rule, a member of the House who is present in the Capitol may cast proxy votes on behalf of up to 10 colleagues, provided that those colleagues give the member written authorization to act as their proxy, and provided that those colleagues give the member instructions on how to vote. Members must notify the clerk of the House if they intend to vote by proxy, and they must identify who they’ve designated as their proxy.

But is such a process constitutional? The honest answer to this question is that no one knows.

Last March, at House Speaker Nancy Pelosi’s direction, the House Rules Committee’s Democrats prepared a report laying out the challenges the House will need to overcome in order to let members vote remotely. It warned that “the constitutionality of remote voting is an untested principle,” and that “if challenged, remote voting would be a novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality.”

Similar things can be said about proxy voting. The House Republicans’ lawsuit begins with a bold declaration: “In the 231-year existence of the United States Congress, neither the House of Representatives nor the Senate has ever permitted a Member to vote by proxy from the floor of the chamber.” That doesn’t make proxy voting unconstitutional, but it does mean that federal courts, which are not allowed to weigh in on hypothetical cases, have never had the opportunity to consider whether proxy voting is constitutional.

House Democrats, in other words, are playing with fire. By authorizing a constitutionally uncertain method of casting votes, they’ve created a real risk that the judiciary — a judiciary controlled by Republicans — will nullify any legislation that passes the House via proxy voting.

It is, of course, completely understandable that House Democrats want to be able to do their jobs effectively and safely in the middle of a historic crisis. But, at least for now, Democrats are stuck with a Supreme Court that’s no less susceptible to partisan polarization than any other political body. And that means that even sensible and well-meaning efforts by House Democrats are potentially in danger of being struck down.

The uncertain constitutionality of proxy voting

There are good legal arguments on both sides of the proxy voting debate.

As the 21 Republicans note in their lawsuit, the Constitution uses words like “meeting,” “assemble,” “attendance,” and “present” to describe how members of Congress should gather in order to conduct business. The Constitution provides that Congress “shall assemble at least once in every Year.” It protects members from being arrested while they are traveling to and from the place where Congress meets.

Moreover, the Constitution doesn’t simply provide that a majority of the House shall form a quorum to do business, it also allows the House to “compel the attendance of absent members” in order to form a quorum.

All of this language suggests that the Constitution envisions a physical gathering of lawmakers, all in a single location, whenever Congress meets to conduct business.

At the same time, however, the Constitution also provides that “each House may determine the rules of its proceedings.” This language indicates that the House of Representatives — and only the House of Representatives — may determine what rules the House uses to conduct votes. If the House decides to use proxy voting, courts may not second-guess that decision.

This more permissive reading of the Constitution is bolstered by the Supreme Court’s decision in United States v. Ballin (1892), which concerned the Constitution’s provision stating that a “majority” of the House “shall constitute a quorum to do business.” At issue was whether members who are present for a vote, but do not actually cast a vote, count toward this quorum.

Rather than resolving this issue by judicial decree, however, Ballin concluded such a question of House procedure was up to the House to resolve. As the Court explained, “the Constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.”

A similar logic could apply to proxy voting. If the two parties disagree about the constitutionality of such voting, that disagreement should be resolved by the House itself, and not by the judiciary.

Yet, while Ballin is a strong precedent supporting proxy voting, it’s not an airtight one, and there is no guarantee that a GOP-controlled judiciary will follow that precedent — especially if the two parties polarize on the question of whether proxy voting is constitutional.

According to Washington University political science professor James Spriggs, the Roberts Court is far more likely than previous Supreme Courts to overrule existing law in an ideologically divided decision. “About 71% of [decisions overruling a prior precendent] are 5-4 under Roberts, compared to about 31% under Rehnquist,” Spriggs told Law360. “That’s a function of a court that is deeply divided along clear ideological lines and on most salient issues with big political stakes.”

The legal question in McCarthy is thorny — or, at least, thorny enough that judges acting in good faith could reasonably land on either side of this dispute. But the fact that McCarthy presents a tricky question opens the door to partisanship. If a reasonable judge could come down on either side of a legal question, then a partisan judge will have little trouble writing a plausible-sounding opinion supporting the outcome that judge prefers.

It’s not clear that the courts can decide if proxy voting is constitutional until the stakes are high

Suppose that the Supreme Court takes up the McCarthy case, agrees with the 21 Republicans, and swiftly decrees that proxy voting violates the Constitution. That’s not an especially bad outcome for Democrats, because it will resolve the uncertainty about whether proxy voting is legal. Just as importantly, such a decision could resolve that uncertainty before Congress enacts any major legislation using proxy voting.

Until such legislation actually becomes law, the stakes in the McCarthy case are fairly low. For the moment, at least, McCarthy is a fight about some hypothetical legislation passed with proxy votes that might become law at some point in the future.

But recall that federal courts generally are not allowed to decide hypothetical cases. Ordinarily, no one is allowed to challenge a federal law (or, for that matter, a legislative rule) unless they can show that they’ve been injured in some way by that law — a requirement known as standing.

The 21 Republicans behind the McCarthy lawsuit claim that they are injured by proxy voting because a vote cast by proxy “dilutes the voting power” of members who are present on the floor to cast their vote. But the Supreme Court rejected a similar claim in Raines v. Byrd (1997). In Raines, six lawmakers who opposed legislation that would have weakened the power of Congress sued to challenge that legislation. But the Supreme Court concluded that these lawmakers lack standing to sue.

The six lawmakers, the Supreme Court noted, “have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies.” Moreover, their “claim of standing [was] based on a loss of political power, not loss of any private right, which would make the injury more concrete.” Such claims, the Court explained, were not sufficient reason to permit individual lawmakers to challenge a federal law.

Similar things could be said about the 21 lawmakers behind McCarthy. Like the plaintiffs in Raines, the McCarthy plaintiffs have not been singled out for unfavorable treatment — they may cast proxy votes just like any other member of the House. And their claim that proxy voting dilutes their voting power is no different than the “claim of standing ... based on a loss of political power” that was deemed insufficient in Raines.

So it is likely that the courts will dismiss the McCarthy case because its plaintiffs lack standing to sue.

But that doesn’t mean that no one will ever have standing to challenge proxy voting. Suppose, for example, that Congress enacts a new tax, and that the House approves this new tax using proxy voting. Anyone required to pay the tax would have standing to sue. Similarly, if Congress enacts a new law regulating a particular industry, anyone regulated by that law would have standing to challenge it.

It is unlikely, then, that the courts will tell us whether proxy voting is constitutional or not until Congress passes a law using proxy voting. And if that law proves to be politically contentious, the GOP-controlled Supreme Court could potentially use the uncertainty about whether proxy voting is constitutional as an excuse to strike down the law.

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