McCarthy Takes House Proxy Voting Fight to Supreme Court

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House Minority Leader Kevin McCarthy has petitioned the U.S. Supreme Court to strike down the chamber’s ongoing use of proxy voting because it violates the Constitution, even as Republican colleagues opt to use the option during the coronavirus pandemic.

The House set aside two centuries of precedent in May 2020 and permitted members to serve as proxies for one or more colleagues in quarantine or otherwise unable to cast floor votes.

At the time, Majority Leader Steny Hoyer said the new proxy system was necessary because Covid-19 represented a “mortal danger.” House Speaker Nancy Pelosi and her lieutenants called it temporary, although it remains in effect. 

Republicans challenged proxy voting, but the U.S. Court of Appeals for the District of Columbia Circuit said in July that the rule change is a legislative act that can’t be reviewed in court. The judges cited the Speech or Debate Clause of the Constitution.  

Now McCarthy and six other Republicans are seeking to appeal that decision. 

McCarthy Takes House Proxy Voting Fight to Supreme Court

The appeals court ruling “not only gets the Speech or Debate Clause wrong, it does so at the cost of insulating a question of exceptional national importance,” McCarthy argued in the appeal. “The House does not have the last word on whether it may operate in absentia. The Constitution does.”

McCarthy in a statement cast the rule change as “Pelosi’s perpetual proxy voting power grab,” and reiterated the complaints he and other Republicans have voiced all along.

“Although the Constitution allows Congress to write its own rules, those rules cannot violate the Constitution itself, including the requirement to actually assemble in person,” the California Republican said.

In the appeal itself, McCarthy said “more than 300 absent Members have sent letters appointing another Member to vote on their behalf to the House Clerk. And yet, this patently unconstitutional practice has and will continue to go unchecked.”

What McCarthy does not mention is that some Republicans have over the months notified the House Clerk’s office that they were designating colleagues to cast proxy votes on their behalf.

Those include the No. 3 ranked House Republican leader, Elise Stefanik of New York, who recently gave birth. 

Stefanik notified the House clerk in an Aug. 24 letter that, “I continue to be unable to physically attend proceedings in the House chamber due to the ongoing public health emergency and hereby grant the authority to cast my vote by proxy to the Honorable Dan Meuser (Pennsylvania), who has agreed to serve as my proxy.”

The same letter pointed out that Stefanik had previously granted her proxy to Representative Claudia Tenney, a fellow New York Republican.

McCarthy offers that the country’s founders “wisely rejected proxy voting because they knew Congress cannot adequately ‘do the business’ of our chambers without deliberating, and we cannot adequately deliberate without assembling in person.”

McCarthy also points out the 100-member Senate has not had proxy voting during the pandemic, “because they know, as we do, that it is unconstitutional.” 

Pelosi spokesman Drew Hammill said 97 House Republicans, in all, have voted by proxy.

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