Proxy Voting Ruled Unconstitutional by Federal Judge

Voting Present by Proxy has always been an Unconstitutional Oxymoron

By Mark Strand

The issue of proxy voting was a significant dispute between Democrats and Republicans after Speaker Nancy Pelosi approved the practice during the COVID-19 Pandemic in 2020. The problem became moot when the Republicans took control of Congress in January 2023 and prohibited proxy voting on the Floor.  

Proxy voting is a legislative practice where one Member casts the vote of another absent Member.

A federal appeals court had previously upheld proxy voting on a narrow basis in McCarthy v. Pelosi, ruling that proxy voting was allowed under the Speech and Debate Clause of the Constitution.

The D.C. Court of Appeals had allowed proxy voting in 2022. However, it did not rule on whether the House could pass legislation without a quorum of its Members physically present. Nor did it consider what might happen when an individual, organization, or state had standing to sue the federal government because a law passed by Congress caused them harm. This is precisely what Texas did, and Federal District Judge James Wesley Hendrix ruled that the legislation in question was passed unconstitutionally because the House violated the Constitution’s Quorum Clause.

Please stick with me; this might get a bit nerdy.

History

On May 15, 2020, in response to the coronavirus pandemic, the U.S. House of Representatives adopted H.Res. 965, which provided for proxy voting on the Floor of the House for the first time in its history. The resolution authorized the Speaker to permit proxy voting when the Sergeant-at-Arms, in consultation with the Attending Physician, notified her that the country was in the middle of a public health emergency due to the pandemic. The Speaker may permit proxy voting for up to 45 days at a time, though she may extend it for an additional 45 days if the pandemic is ongoing at the expiration of the so-called “covered period.” The resolution required absent Members to send a letter to the House Clerk designating a colleague as their proxy. They were also required to instruct their proxy on how to vote on each issue before the House. Votes cast by proxy counted towards a quorum. The rule was extended until the end of the 117^th Congress on January 3, 2023.

This decision was unprecedented, as the Senate has never allowed proxy voting, and the House had never, before 2020, allowed proxy voting.  

The Constitutional Convention spent a considerable amount of time debating the Quorum issue. Some delegates thought a quorum made up of a majority might be cumbersome and could allow a group of Members to deny a quorum at a time when the House needed to act. However, George Mason and Elbridge Gerry feared that anything less than a majority of Members being present would allow small groups to make laws for the rest of the country. 

The first draft included a provision to make a majority of 33 in the House and 14 in the Senate – a majority plus one in each Chamber. Since they hoped to add more states to the original 13, they changed the language to require a majority as a quorum. 

James Madison and Edmund Randolph of Virginia moved to insert a provision allowing each House to summon and penalize absent Members. Then, the delegations unanimously approved the majority quorum provision, as amended, and this version made its way into the U.S. Constitution.

Go here for more information on the Constitutional Convention debate on proxy vote. 

As Timothy Lang and I wrote in May 2020:

“If proxy votes were to count towards a quorum, the Randolph-Madison amendment would be a redundancy. Since the amendment allows each House to “compel the Attendance of absent Members,” it is predicated on the notion that a physical presence is necessary for Congress to conduct its business. If a physical presence were not necessary, it would be unnecessary to “compel the Attendance of absent Members.” Nor would there be any reason to penalize them for failing to show. However, the states unanimously voted to include this provision in the Constitution, highlighting the importance of a physical presence at the Constitutional Convention.”

It is conclusive that the writers of the Constitution considered a physical majority of the House and Senate necessary to conduct legislative business. 

The Quorum Clause was tested early in the young nation’s history. As the Mountain States Legal Foundation points out, President Washington asked his Secretary of State, Thomas Jefferson, whether he could convene Congress in a location other than Philadelphia, which had suffered 5000 deaths from yellow fever. Jefferson, along with James Madison, said no. “Congress must meet in Philadelphia, even if it be in the open fields, to adjourn themselves to some other place.”

In 1918, at the height of the Spanish Flu that killed over 675,000 Americans, Congress continued to meet in person. There is no record of Congress considering the use of proxies at that time, even though there was extensive use of telegrams that might have been used to cast votes remotely. 

Voting Present by Proxy is an Unconstitutional Oxymoron

While the Constitution leaves much leeway to the House and Senate to establish their rules of procedure, it’s not absolute. The Constitution includes more than a few procedural requirements, such as the two-thirds supermajority in both Chambers to override a presidential veto. Further, in United States v. Ballin, the Supreme Court wrote that neither the House nor Senate may “by its rules ignore constitutional restraints or violate fundamental rights…”

The quorum requirement is, without a doubt, a “constitutional restraint.” The Constitution is clear: a quorum is required to do business in both Chambers. A quorum is defined as a majority of its members, and the Constitution anticipates the physical presence of the Members. Article 1, section 5, of the U.S. Constitution, states:

a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

If a physical presence were not necessary, it would be unnecessary to “compel the Attendance of absent Members.” 

McCarthy v. Pelosi

House Republicans turned to the Judicial Branch to stop the House Democratic majority from implementing proxy voting. Then-Minority Leader Kevin McCarthy filed suit for himself and the Republican leadership against Speaker Pelosi and the Democratic leadership to block the proxy voting rule. (The lawsuits were not filed against them personally but in their roles as leaders of the House.)

In 2020, then-Minority Leader Kevin McCarthy and the Republican leadership filed suit against Nancy Pelosi and the Democratic leadership to block proxy voting.

In August 2020, however, District Court Judge Rudolph Contreras dismissed the lawsuit because, in his view, the defendants enjoyed immunity from the lawsuit per the Constitution’s Speech or Debate Clause, which states, “for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place” (Article I, section 6). The House Republicans promptly appealed to the U.S. Circuit Court of Appeals for the District of Columbia Circuit, which unanimously upheld the District Court’s decision to dismiss the lawsuit. The Circuit Court agreed with the District Court that the Speech or Debate Clause conferred immunity upon the defendants in this case.

“Speech or Debate Clause” — along with its simple wording in the Constitution — is a modest name for a powerful constitutional privilege. Over the years, courts have interpreted the Speech or Debate Clause expansively, beyond simply Member speeches. As Circuit Court Chief Judge Srinivasan noted in his opinion, “It is long settled that the Clause’s protections range beyond just the acts of speaking and debating.” These protections extend to “all legislative acts,” he wrote. Therefore, the question before the Courts was whether the proxy voting system was a “legislative act,” defined as a Member’s action regarding House business while the House is in session or during a committee proceeding. The term encompasses debate on legislation and any other business the Constitution entrusts to the House. 

In reviewing the case, the Circuit Court found that proxy voting and the related actions the Clerk and Sergeant-at-Arms were required to carry out “are quintessentially legislative acts falling squarely within the Clause’s ambit.” The Court held it was “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.” Given that the Court found that the acts in question were legislative acts, it ruled that the defendants were immune to a legal challenge per the Constitution’s Speech or Debate Clause. Since both the District and Circuit Courts found that the Speech or Debate Clause conferred immunity upon the defendants, neither Court went the extra step to consider the merits of the plaintiffs’ arguments about whether the Constitution required Members to be physically present for a quorum. Thus, the District Court dismissed the case, and the Circuit Court affirmed that decision.

The case never made it to the Supreme Court since it was rendered moot when Republicans took over the House and repealed the rule on proxy voting. However, that did not mean the matter was settled, even though the proxy rule was no longer in effect.

Texas vs. Garland

We hate to say we told you so (not really), but in August 2022, Timothy Lang and I wrote:

“If the Supreme Court does not take up an appeal, there could be another avenue to challenge the quorum requirement that avoids the Speech or Debate immunity issue. In the future, there could be a plaintiff who may suffer some injury due to a law Congress might pass where the quorum required to act on the legislation was reached using proxy votes. In such a case, the plaintiff would be suing a government agent enforcing the law rather than the Speaker of the House, the Sergeant-at-Arms, and the Clerk. Since the government agent would not be acting on legislative business, the Speech or Debate Clause could not conceivably confer immunity. Since Speech or Debate immunity would be irrelevant, the courts must address whether the Constitution’s quorum requirement demanded physical presence. For us today, though, the question is whether we should wait for some critical national legislation to be held up in Court or settle the constitutional question now.”

This is precisely what has happened. On Tuesday (February 27), Federal Judge James Wesley Hendrix ruled that proxy voting is unconstitutional. This time, however, it was not House Republicans filing suit but the State of Texas.  

Texas filed suit because, they claimed, they were harmed by provisions of the F.Y. 2022 Omnibus Appropriation bill. This $1.7 trillion bill funded the entire government. Texas picked two provisions of the bill for purposes of the lawsuit. Texas claimed, and the judge agreed, that since the Omnibus appropriation bill passed without a live quorum being present, the legislation violated the Quorum Clause of the Constitution. Many bills had passed with Members voting by proxy, but this was the first major bill to pass where more Members voted by proxy than in person.  

Judge Hendrix explained that only 201 of the 435 Representatives were physically present for the vote. The bill passed 225-201 (one voted present). That means that 226 votes were cast by proxy. The votes of those physically present were 88 yea and 113 nays.

The defendants argued that many votes occur in the House without a physical quorum. Most motions for unanimous consent happen without a physical quorum being present. Voice votes can take place without a physical quorum being present. But this argument is misleading. The quorum provision is not self-enforcing. A member must make a point of order that a quorum is not present. If they do, a quorum must be counted before any vote is taken. The quorum is assumed if no point of order is raised and rarely is on non-controversial actions.

In the case of the 2022 Omnibus, the objection was raised by Rep. Chip Roy (R-TX), who pointed out that a quorum was not present. The Acting Speaker ruled that the House rule on proxy voting allowed proxies to be counted towards a quorum and that his motion would not be in order. This is important since it demonstrates that an effort was made to require a physical quorum. So, there was an effort to raise the question of whether a quorum was present.

Conclusion

The Court’s ruling is just plain logic. You cannot be physically present for a vote while not being physically present. Undoubtedly, the Administration will appeal this ruling to the entire District Circuit and the Federal Court of Appeals.

The practical problem is that this is a $1.7 trillion bill that contains the entire discretionary budget of the United States for fiscal year 2022 – everything from Defense to Agriculture. While Texas picked out two provisions, if the Supreme Court upholds Texas v. Garland, many people, organizations, and States can demonstrate harm from one provision or another. The case could result in a legal quagmire. 

That is a topic for another day. But for now, those legal scholars and Members of Congress who have objected to proxy voting on the Floor of Congress have reason to cheer. It will likely take years before this gets to the Supreme Court. In the meantime, let’s hope a future Congress does not take up proxy voting again. If they do, they will likely spend a lot of time untangling the legal consequences of their actions.