House Minority Leader Kevin McCarthy (R-Calif.) on Thursday moved to bring Republicans’ lawsuit against proxy voting during the COVID-19 pandemic before the Supreme Court, after a federal appeals court dismissed the case this summer.
The petition before the nation’s highest court comes after dozens of House Republicans — who almost uniformly opposed the remote voting measure when it was first instituted in May 2020 — have ultimately embraced proxy voting.
But McCarthy is continuing to argue that House members should only assemble face-to-face and that proxy voting is unconstitutional.
“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,” McCarthy said in a statement. “To restore the House to its proper legislative role, the Supreme Court must strike down proxy voting.”
A three-judge panel from the U.S. Court of Appeals for the District of Columbia ruled in a unanimous opinion on July 21 that the GOP’s proxy voting lawsuit lacked jurisdiction because the court didn’t have the authority to intervene in decisions about House rules.
That ruling upheld a decision in August of last year from a D.C. district court judge dismissing the GOP lawsuit against proxy voting.
McCarthy’s petition before the Supreme Court argues that proxy voting “does violence to the Constitution’s text and tradition” and “creates an unlawful delegation of an absent member’s nondelegable legislative power.”
“The Framers designed Congress to be a deliberative body that convenes and assembles in person at the seat of government to speak and debate as part of carrying out the People’s business. Face-to-face deliberation is part of the House’s very DNA,” the petition states.
It’s unclear whether the Supreme Court will agree to take up the case. Four justices will have to vote in favor of granting McCarthy’s petition to proceed.
A spokesperson for Speaker Nancy Pelosi (D-Calif.) noted in response to the petition that dozens of House Republicans who initially signed onto the lawsuit as plaintiffs in May 2020 have since withdrawn their names. The only House Republicans listed on Thursday’s petition as parties to the proceeding are McCarthy and Rep. Chip Roy (Texas).
Separately, Roy earlier this week left the door open to the possibility of initiating legal action after he was fined $500 for failing to abide by the House floor mask requirement.
Republicans voted uniformly against establishing proxy voting last year so members could still cast votes if they became sick with COVID-19, had to quarantine, or otherwise couldn’t travel to Washington because of the pandemic.
One Republican, now-former Rep. Francis Rooney (Fla.), said at the time that he would have voted in favor of proxy voting if he had been physically present in the Capitol that day.
At the end of last year, a handful of other Republicans — mostly members who were retiring and had little to lose politically by reversing their position on proxy voting — also began embracing it.
Then in January, days after the violent Jan. 6 attack on the Capitol, McCarthy told Republicans they could use proxy voting if they had concerns about security.
Since then, proxy voting has become a tool of convenience for lawmakers in both parties juggling packed schedules.
McCarthy criticized two Florida Democrats, Reps. Charlie Crist and Darren Soto, last year for voting by proxy while they were attending a SpaceX launch in their state.
Yet in February, more than a dozen House Republicans voted by proxy while they attended the Conservative Political Action Conference in Orlando, Fla.
A total of 36 House Republicans used proxy voting on the most recent day the chamber was in session Aug. 24, with fellow GOP colleagues serving as their proxies.
The group of Republicans voting by proxy on Aug. 24 even included members of McCarthy’s leadership team: GOP Conference Chairwoman Elise Stefanik (N.Y.), who gave birth to her first child a few days later, and National Republican Congressional Committee Chairman Tom Emmer (Minn.).
Under the rules establishing for proxy voting, it is only allowed for 45 days at a time unless the Speaker authorizes an extension with confirmation from the House sergeant-at-arms and Capitol physician that there is still a public health emergency due to the COVID-19 pandemic.
Pelosi announced last month that proxy voting would continue through at least Oct. 1.
The use of proxy voting has also given both parties an advantage with Democrats’ historically thin majority. Democrats can ensure that they have the maximum number of votes on a given day, when in the past an absence on a particularly tight vote might threaten a bill’s chances.
And if Republicans have all of their members voting, they can make sure Democrats have minimal wiggle room for defections.
Some Democrats have left open the possibility of making proxy voting a permanent option, such as for when members are sick or on parental leave. Other legislative bodies around the world have long permitted a similar practice, even before the pandemic.
“I think there will be discussion about should we be able to vote remotely in other circumstances post-COVID-19,” House Majority Leader Steny Hoyer (D-Md.) said in March. “There is really, you know, no magic in being in a particular room when you vote.”
Updated at 4:30 p.m.