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Law360 (August 6, 2020, 10:09 PM EDT ) A D.C. federal judge on Thursday tossed House Republicans' suit challenging a Democrat-backed resolution that lets lawmakers cast proxy votes for one another as a COVID-19 pandemic precaution, finding the Democrats are immune under the U.S. Constitution's speech or debate clause.
U.S. District Judge Rudolph Contreras noted that that clause refers to all "legislative acts," in addition to speech and debate by Congress, all of which cannot be questioned any other place. Because the resolution is a legislative act, the suit is barred, the judge found.
"The court can conceive of few other actions, besides actually debating, speaking or voting, that could more accurately be described as 'legislative' than the regulation of how votes may be cast," he said.
Minority Leader Kevin McCarthy, R-Calif., led 20 other Republican representatives and four constituents in a lawsuit against House Speaker Nancy Pelosi, D-Calif., and a pair of nonpartisan House officials in D.C. federal court, arguing in late May that the Democratic rule change flouts the constitutional stipulation that "a majority of each [house] shall constitute a quorum to do business."
The House approved the rule change May 15 in a 217-189 vote that saw unanimous opposition from Republicans along with three Democratic defections. The divisive vote came after two weeks of bipartisan discussions failed to produce a deal and Pelosi moved unilaterally.
The new proxy voting rule was meant to ensure continuity during a pandemic and allow lawmakers to participate even if ill, quarantined or otherwise unable to physically appear at the U.S. Capitol. One member can represent up to 10 other members for both quorum counts and votes, with prior approval and explicit instructions. About 60 members have registered a proxy so far.
"It is simply impossible to read the Constitution and overlook its repeated and emphatic requirement that members of Congress actually assemble in their respective chambers when they vote, whether on matters as weighty as declaring war or as ordinary as naming a bridge," the Republicans said in their complaint. "That requirement is no less mandatory in the midst of a pandemic. ... A majority of the House may have voted to ignore what the Constitution demands of it, but this court may not do the same."
The plaintiffs lay out the centuries-long history of members of Congress physically present in the Capitol. The House met in Washington during a yellow fever epidemic in 1793, the Republicans said, and again during the 1918 pandemic, even "as more members fell ill with Spanish flu, some fatally."
In the Civil War, the complaint says, "They met, even after beds had been set up in the Rotunda, in Statuary Hall and in the corridors of the Capitol to treat wounded Union soldiers from First Bull Run. They met, even as Union soldiers stood sentry at every door."
The lawmakers said they were harmed because "the inescapable mathematical result of [proxy voting] is the dilution of voting power of those members who have not been given (or, like the representative plaintiffs, refuse to accept) proxies." The constituents said they also suffered from diluted voting power.
Representatives for the parties did not immediately respond to requests for comment Thursday.
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.
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, Samantha M. Goldstein, Kendall Turner, Ephraim A. McDowell, and Anna O. Mohan of O'Melveny & Myers LLP.
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.
--Additional reporting by Andrew Kragie. Editing by Gemma Horowitz.
Update: This story has been updated with additional counsel information for Pelosi.
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