Appeals Court Says Cannot Decide McCarthy Proxy Vote Lawsuit

Speaker Nancy Pelosi (left), House Minority Leader Kevin McCarthy (right), Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer will attend the budget meeting. | Aaron Bernstein-Pool/Getty Images
Aaron Bernstein-Pool/Getty Images

Courts lack jurisdiction to decide if Nancy Pelosi’s (D-CA) proxy vote rule violates the Constitution, a federal appeals panel in D.C. ruled Tuesday.

Minority Leader Kevin McCarthy (R-CA) challenged Pelosi’s and Democrats’ rule allowing proxy voting in the House of Representatives during the coronavirus pandemic, but the federal trial court in Washington, DC, held that it lacked authority to decide the matter.

A three judge panel of the D.C. Circuit appeals court agreed, refusing to decide the merits of the case, citing such changes to standard voting procedures are specifically covered in the Constitution:

In response to the COVID-19 pandemic, the House of Representatives adopted a Resolution enabling Members who are unable to attend proceedings in person to cast their votes and mark their presence by proxy. A number of Representatives and constituents challenge the constitutionality of the Resolution. They argue that various constitutional provisions compel in-person participation by Representatives in all circumstances, including during a pandemic.

The decision said, “Any Member whose presence is recorded by a designated proxy, or whose vote is cast by a proxy, shall be counted for the purpose of establishing a quorum. A Member can act as a proxy for a maximum of ten other Members at any one time.”

These matters are spelled out in the Speech or Debate Clause of the Constitution, according to the opinion filed by Chief Judge Sri Srinivasan, which said, “The Speech or Debate Clause states that Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place.” Srinivasan added:

While the Clause by terms prohibits Speech or Debate in either House from being questioned in any other Place, it is long settled that the Clause’s protections range beyond just the acts of speaking and debating… Rather, the Supreme Court has consistently read the Speech or Debate Clause broadly to achieve its purposes.

The court added:

Of particular salience, the Clause applies not just to speech and debate in the literal sense, but to all legislative acts. Legislative acts are those generally done in a session of the House by one of its members in relation to the business before it. House rules governing how Members may cast their votes thus concern core legislative acts.

Further justifying the court’s decision not to take up the case was this conclusion about the House rules for voting: “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.”

McCarthy and the other Republican lawmakers now have the option of petitioning the Supreme Court to review the decision.

The case is McCarthy v. Pelosi, No. 20-5240 in the U.S. Court of Appeals for the District of Columbia Circuit.

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