By Khorri Atkinson

Law360 (December 23, 2020, 7:30 PM EST) -- A recent move by two House Republicans to vote by proxy undermines a GOP-led lawsuit seeking to overturn Democratic rules allowing lawmakers to cast proxy votes for colleagues not on the floor during the coronavirus pandemic, the chamber's top attorney told the D.C. Circuit Wednesday.

Douglas N. Letter, general counsel for the U.S. House of Representatives, said in a notice that the decision by Reps. Greg Gianforte, R-Mont., and Paul Mitchell, R-Mich., to use the remote-voting procedures they are simultaneously challenging as unconstitutional proves why their suit "must fail."

Letter's two-page notice to the appellate court came almost two months after a three-judge panel heard oral arguments in Republicans' bid to revive the case. A D.C. federal judge in August dismissed the challenge filed by more than 150 GOP lawmakers, led by Minority Leader Kevin McCarthy, R-Calif., and four constituents against House Speaker Nancy Pelosi, D-Calif., and a pair of nonpartisan House officials.

The House started to allow proxy voting in May after approving a resolution and Republicans almost immediately challenged it. They maintained that the proxy voting scheme violates an inherent constitutional expectation of physical presence, and that proxy voting is not integral to the legislative process because it has never been used before.

U.S. District Judge Rudolph Contreras found that the U.S. Constitution's speech or debate clause gives congressional officials immunity from lawsuits over legislative acts such as voting. Meanwhile, the D.C. Circuit panel that heard oral arguments in November voiced skepticism on the GOP lawmakers' ability to sue and expressed the view that courts should not wade into political congressional disputes.

In Wednesday's notice to the court, Letter argued that the two lawmakers' use of remote voting supports Democrats' argument that the challengers lack standing, that the remote-voting rules apply to all members equally and that Republicans erroneously claimed their "votes have been denied their full validity."

"This case is an abstract dispute over rules that do not affect plaintiffs in a concrete and particularized way. It does not belong in court," the attorney wrote.

"Two plaintiffs' use of remote voting also reaffirms the compelling interests that led the House to adopt the rules — permitting the House to conduct its business safely during a crisis while maximizing representation in Congress," he added.

According to the House clerk's office, Gianforte, who was elected governor of Montana in November, sent his proxy vote to Rep. Tom Suozzi, D-N.Y., citing the ongoing public health emergency.

Mitchell, who recently severed his ties with the Republican Party and is retiring from Congress at the end of this session, sent his proxy vote to Rep. Abigail Spanberger, D-Va.

In a recent tweet explaining his decision, Mitchell, 64, explained, "I have suffered with severe asthma since I was young and my wife struggles with it also. My physician has implored me not to travel to DC these weeks following Thanksgiving. I will not risk my family's health in order to vote on key items."

In a jab at Mitchell, Letter wrote, "It is fitting that the rules permitted him to vote on the House's recent coronavirus relief package without putting his family at risk. Plaintiffs' ill-conceived suit would prevent similarly situated members from voting and deprive millions of constituents of representation in the House."

Republicans' counsel, Charles J. Cooper of Cooper & Kirk PLLC, did not immediately reply Wednesday to request for comment on Letter's notice.

The new proxy voting rules were meant to ensure continuity during a pandemic and allow lawmakers to participate even if ill, quarantined or otherwise unable to physically appear at the Capitol. One member can represent up to 10 other members for both quorum counts and votes, with prior approval and explicit instructions.

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 of the U.S. House of Representatives' Office of General Counsel and 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.

--Additional reporting by Andrew Kragie. Editing by Jay Jackson Jr.

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