By Andrew Kragie

Law360 (July 24, 2020, 11:13 PM EDT) -- A D.C. federal judge promised a quick ruling in a partisan fight over U.S. House proxy voting rules because the constitutional dispute is likely headed for higher courts.

At a hearing Friday before U.S. District Judge Rudolph Contreras that focused on whether the courts can referee a fight over congressional procedures, the arguments largely turned on whether the Constitution requires physical presence for representatives to establish a quorum and conduct votes.

Republicans, who are challenging recent pandemic-induced Democratic rules that allow members to vote remotely by giving precise instructions to a colleague, contend a physical presence is indeed required. But the House Democrats' lawyer insisted Friday that the Republicans did not have standing to even bring the suit and the judge should not decide the merits of the case.

The judge said he had not made up his mind based on the written briefing in the case, but experts told Law360 the fight would be an uphill battle for Republicans.

"I'm completely open to your persuasion today. Give me your best pitch and I'll get you on to the next level as quickly as possible," Judge Contreras said at the start of the nearly three-hour phone hearing, acknowledging that the case is certain to go to the D.C. Circuit and quite possibly to the U.S. Supreme Court.

The judge turned first to the Republican counsel, Charles J. Cooper of Cooper & Kirk PLLC, who argued that even though the courts generally allow Congress to set its own rules, the judge had to intervene because the proxy voting scheme violates an inherent constitutional expectation of physical presence as well as lawmakers' constitutional right to be fully counted.

To determine standing, the judge should accept the premise of the argument and find a possible injury, Cooper said. He pointed to court rulings from the early 1990s denying five territorial delegates the right to cast votes in the House because it would dilute state representatives' vote from 1 out of 435 to 1 out of 440. He said the same principle applied here in the sense that votes cast by ineligible absentee lawmakers would dilute the votes of eligible, physically present members of Congress.

On the merits, Cooper said the Constitution's frequent use of words like "assemble" and "present" demands a physical presence in the House chamber. He added that 230 years of unbroken precedent, through past pandemics and wars, confirms it. However, some Republicans, including the No. 3 House GOP leader, Rep. Liz Cheney of Wyoming, have suggested they could be open to nonphysical presence through remote voting that is electronic rather than by proxy.

The judge seemed skeptical about another argument from Cooper, that proxy voting violates delegation principles. Court rulings have established limits on Congress' ability to delegate lawmaking to the executive branch; Cooper drew a comparison and said the Constitution also forbids representatives from delegating their votes.

"The voters in that district, they are the ones that hold the genuine legislative power," Cooper said. "That legislative power is one that the voters delegate to that member of the House or the Senate. That delegation does not carry with it the authority to subdelegate, if you will, the power to cast that vote."

The judge disagreed with that assertion, saying, "The proxy rule continues to allow the person giving the proxy to make the decision."

Cooper added that the Republicans see "no constitutional difference whatsoever" between the current proxy voting rules, which require specific instructions on each vote, and a general proxy that delegated the power to choose.

The House's general counsel, Douglas N. Letter, jumped on this distinction. He said the current system hardly differs from other ways used to transmit choices, such as the House's electronic voting system and tally clerk.

"It's the same as a voting machine," he said. "Proxy voters can do nothing other than [what] the tally clerk does and transmit the vote that they were given by the actual voting member ... It doesn't allow the parade of horribles that Mr. Cooper mentioned."

Letter said Cooper's claim of a constitutional requirement for physical presence was an unreasonable inference that could not defeat the explicit statement, "Each house may determine the rules of its proceedings."

"The framers didn't say you couldn't do this," Letter said, "and the framers did say it's up to the House to determine how it's going to operate procedurally."

He urged the judge to dismiss the case for lack of standing: "We don't think we should be coming anywhere near the merits here."

The judge asked a few factual questions of the House counsel. He confirmed that every vote since the rules change has indeed had a quorum of physically present members and that lawmakers plan to leave Washington in early August for a traditional monthlong break.

Judge Contreras' trickiest question for Democrats was about whether the courts could consider a challenge if a House rule barred all women members from voting, or if it double-counted the votes of all men. Letter sidestepped the question and said he didn't have to take position because the hypothetical differed substantially from proxy voting.

"I doubt I will get the last word on this," Judge Contreras said as the hearing wrapped up. "I will get a decision out as quickly as practical so I can send everyone on their way."

Cooper thanked the judge for sitting through nearly three hours of arguments, but the judge said it was a pleasure.

"One of the greatest parts of the job are days like today when everyone knows what they're talking about and writes clearly," Judge Contreras said. "The opposite happens all too frequently."

Cooper told Law360 in an email after the hearing that "Judge Contreras was obviously well-prepared and well-versed on the issues, and we look forward to his decision."

The phone format created a few technical difficulties as the judge repeatedly asked listeners to mute themselves and the lawyers made sure they could be heard.

"I feel like I'm shouting at you," the House counsel told Cooper.

"Well, I'm accustomed to that, Doug," Cooper quipped.

Letter did not immediately respond to a request for comment Friday.

The Republicans are represented by Charles J. Cooper, Michael W. Kirk, Adam P. Laxalt, Joel Alicea and Harold Reeves of Cooper & Kirk PLLC and Elliot S. Berke of Berke Farah LLP.

House Speaker Nancy Pelosi, D-Calif., and the House officials are represented by Douglas N. Letter and other lawyers with the U.S. House of Representatives' Office of General Counsel.

The case is McCarthy et al. v. Pelosi et al., case number 1:20-cv-01395, in the U.S. District Court for the District of Columbia.

--Editing by Jay Jackson Jr.

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