Republicans Urge DC Circ. To Ban Proxy Voting In House

By Andrew Kragie
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Law360 (September 2, 2020, 6:27 PM EDT) -- Republicans have asked the D.C. Circuit to block proxy voting in the U.S. House of Representatives and overrule a federal district judge who said congressional officials cannot be sued over internal rules.

More than 150 GOP lawmakers, led by Minority Leader Kevin McCarthy of California and joined by several constituents, told the D.C. Circuit on Monday that it should reverse the district judge who last month dismissed their case after finding the U.S. Constitution's speech or debate clause gives congressional officials immunity from lawsuits over legislative acts such as voting. They charged that the ruling broke with precedent and would keep courts from intervening even if Congress adopted discriminatory voting rules.

"The district court's sharp deviation from well-established speech or debate clause principles has far-reaching and untenable consequences," the Republicans said. "A rule [preventing first-term representatives from voting on appropriations bills] would be shielded from judicial review. Even more extreme examples, such as rules forbidding women or Black members from voting, would likewise be safe from challenge. ... That has never been the law of legislative immunity, and this court need not, and should not, make it so."

The Republicans asked the appeals court not only to revive their case against Speaker Nancy Pelosi, D-Calif., and House officials but also to decide the merits and block the unprecedented practice of proxy voting, which was allowed in response to the COVID-19 pandemic.

"Once the court concludes that the federal courts have subject-matter jurisdiction over this dispute, it should proceed to resolve the merits and, following the plain meaning of the Constitution, hold [the proxy voting plan] unconstitutional," they said. "This case does not turn on any disputed facts or the need to develop an evidentiary record, and so the court should put a clear end to proxy voting and permanently enjoin enforcement."

The Republicans' lead counsel, Charles J. Cooper of Cooper & Kirk PLLC, told Law360 in a statement Wednesday that the D.C. Circuit "has put our appeal on a highly accelerated briefing and argument schedule, and we look forward to the court's consideration of our arguments."

Pelosi's office and counsel did not immediately respond to a request for comment.

The D.C. Circuit has not scheduled oral arguments or assigned the panel of three judges who will hear the case. The panel's decision could be appealed to the full circuit, which has voted more frequently in recent years for en banc review, according to Brigham Young University law professor Aaron L. Nielson. The appeals court issued three en banc decisions just in the last month.

The complex case with thorny constitutional questions and heavy partisan overtones could well reach the U.S. Supreme Court. At a July hearing, U.S. District Judge Rudolph Contreras promised the lawyers a speedy ruling to "get you on to the next level as quickly as possible."

The House started to allow proxy voting in May after approving a resolution that lets members have another representative cast their vote on the House with specific instructions for each vote. All Republicans and a few Democrats opposed the change, which came after weeks of bipartisan discussions about remote voting during the pandemic failed to produce a deal.

Republican lawmakers and constituents quickly sued, arguing that proxy voting dilutes the votes of representatives who are physically present. Constitutional scholars told Law360 the case faces long odds because of myriad issues including standing, ripeness and the "political question" doctrine.

The authorizing resolution allows the speaker to extend proxy voting in 45-day increments so long as COVID-19 continues to present a public health emergency. Pelosi most recently extended it through at least Oct. 2. The clerk's office reports 68 members, almost all Democrats, with registered proxies as of Wednesday.

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

Pelosi and the House officials are represented by Douglas N. Letter and other lawyers with the U.S. House of Representatives' Office of General Counsel as well as Michael R. Dreeben, Kendall Turner, Samantha M. Goldstein, Alec Schierenbeck, Ephraim A. McDowell and Anna O. Mohan of O'Melveny & Myers LLP.

The case is McCarthy et al. v. Pelosi et al., case number 20-5240, in the U.S. Court of Appeals for the D.C. Circuit.

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Kevin Mccarthy, et al v. Nancy Pelosi, et al


Case Number

20-5240

Court

Appellate - DC Circuit

Nature of Suit

2440 Other Civil Rights

Date Filed

August 10, 2020

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