Judge Dismisses Republican Lawsuit Over House Proxy Voting

House Minority Leader Kevin McCarthy speaks during a news conference on March 26. (AP Photo/Susan Walsh)

WASHINGTON (CN) — A lawsuit filed by House Republicans attempting to stop a proxy voting system launched by Democrats to ensure social distancing and reduce the spread of Covid-19 in Congress was dismissed by a federal judge on Thursday.

“During the pandemic, Congress has continued working and has passed relief bills aimed at addressing the public health emergency, but members have not been immune from the diseases’ spread,” U.S. District Judge Rudolph Contreras wrote at the top of his 18-page opinion, a reference to at least a dozen lawmakers who have tested positive for the novel coronavirus despite the recent and unprecedented introduction of proxy voting on the House floor in May.

Nearly two dozen House Republicans led by Minority Leader Kevin McCarthy sued Speaker of the House Nancy Pelosi on May 26, arguing that the party-line passage of temporary rules only a week before on proxy voting, or the use of a surrogate House member to cast one’s vote if absent, was unconstitutional and would “dilute” voting power.

McCarthy said the proxy method and the use of remote hearings — despite the pandemic and a death toll at the time of roughly 100,000 — represented a “dereliction of duty” and was ultimately a measure that would “silence the American people’s voice during a crisis.”

The new and temporary rules permit a surrogate to vote for up to 10 members at a time, a factor that McCarthy and other Republicans argued diminished the power of elected officials that weren’t physically present while placing more in those who were.

Judge Contreras gave some shrift to this argument Thursday, pointing to principles undergirding Supreme Court rulings in Raines v. Byrd, which found that individual Congresspeople are not granted automatic standing to determine the constitutionality of laws impacting the whole body, and in Michel v. Anderson, which found that constituents had standing to file grievances about a member’s voting power.

But Judge Contreras opted to exercise “district court restraint” on the matter of dilution since neither high court case was totally eviscerated in the lawmakers’ dispute.

Instead, dismissal of the GOP’s complaint hinged on the Speech or Debate Clause found in Article I, Section VI of the Constitution that states “any speech or debate in either House, [Members of Congress] shall not be questioned in any other place.”

The clause was intended by the Founders to give Congress independence over its own legislative acts. And while McCarthy and plaintiff Republican constituents argued the court should make a distinction between “actual legislative acts” and “executing a legislative order, or carrying out [legislative] directions,” Contreras found it unnecessary.

“Applying the Clause here to the administration of rules governing how Members can vote on legislation by proxy does not stretch the meaning of the word ‘legislative’ in a similar way or in any way at all,” Judge Contreras wrote.

In the end, besides actual debate, speech or voting, there were few other actions the court could conceive of that would be accurately described as “legislative” than the regulation of how votes are cast.

On news of the ruling Thursday, Speaker Pelosi said in a statement: “Remote voting by proxy is fully consistent with the Constitution and more than a century of legal precedent, including Supreme Court cases, that make clear that the House can determine its own rules.”

“The nation is in the middle of a dangerous pandemic and the House of Representatives must continue to work,” she added.

Since the House voted in favor of it in May, nearly 100 House Democrats have voted by proxy and without incident. The Clerk of the U.S. House, Cheryl Johnson — also named in the complaint along with Sergeant-at-Arms Paul Irving — keeps a running log of active proxy designations, accessible to the public.

Though in effect for weeks, it was not until late last month that a GOP lawmaker finally voted by proxy.

Florida Republican Representative Francis Rooney designated Virginia Democrat Don Beyer on July 29 to cast his nay vote on a procedural motion just ahead of another vote on a slew of federal budget appropriations.

The decision by the 66-year old Rooney coincided with the announcement from Texas Republican Louie Gohmert that he tested positive for Covid-19.

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