By Khorri Atkinson

Law360 (November 2, 2020, 6:20 PM EST ) House Republicans' bid to overturn Democratic rules allowing lawmakers to cast legislative votes for up to 10 colleagues during the coronavirus pandemic appeared imperiled Monday after a D.C. Circuit panel voiced skepticism during oral arguments over the GOP lawmakers' ability to sue.

The dispute landed in the appellate court's docket after U.S. District Judge Rudolph Contreras in early August dismissed the case lodged 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 district judge found that the U.S. Constitution's speech or debate clause gives congressional officials immunity from lawsuits over legislative acts such as voting.

As a three-judge panel wrestled with the issue during a 70-minute livestream teleconference hearing Monday, U.S. Circuit Judge Justin Walker at one point said his colleagues might want to butt out of the case, which has heavy partisan overtones, because well-settled legal doctrines suggested that no federal court is "supposed to be an instrument of partisan warfare."

"It seems to me this is yet another case where one group of politicians is sparring with another group of politicians and they want a federal court to pick a side," Judge Walker told Republicans' counsel, Charles J. Cooper of Cooper & Kirk PLLC. "Tell me why I shouldn't view this case as a group of Republicans representatives trying to get their way in Congress against a group of Democratic representatives."

Cooper repeatedly stated the panel must intervene because 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.

Judge Walker noted that the U.S. Supreme Court's June 2018 holding in South Dakota v. Wayfair overturned the court's 26-year physical presence standard. In that case, the justices ruled 5-4 vote that one may be present in a particular situation in a "meaningful way without that presence being physical in the traditional sense of the term."

Cooper replied that the matter before the panel is starkly different. In Wayfair, the high court ruled that a 2016 South Dakota law mandating certain out-of-state sellers to collect and remit tax regardless of whether they had a physical presence in South Dakota is legal under the commerce clause.

But Judge Walker later questioned why one of Cooper's clients in the case — a constituent whose representative voted by proxy — has standing to sue. According to the attorney, that constituent was injured because they delegated their power to the elected representative "to express their voice in the halls."

Chief Circuit Judge Sri Srinivasan, too, expressed doubts with Republicans' arguments. The judge said in part that Cooper seemed to be arguing that efforts to make it easier for legislators to cast votes imposed an injury on those challenging the voting procedure.

"Your idea is, our no-votes would carry more weight if somebody who has a yes-vote couldn't vote," Judge Srinivasan said.

Cooper explained that's not the GOP's argument. He said "regardless of whether the votes are decisive," the pandemic-induced Democratic rules — which were passed in May to allow members to vote remotely by giving precise instructions to a colleague — are unlawful because the Constitution requires physical presence for representatives to establish a quorum and conduct votes. 

Counting proxy votes "create the delusion and constitutional injury," the GOP attorney said. "It dilutes all the valid votes."

He pointed out that the Constitution was written at a time when it was even more geographically challenging for lawmakers to attend congressional sessions in Washington.

"Nonetheless, the framers, in one passage after the other, used words that make it clear that actual presence was required. It's an unbroken history for 230 plus years," Cooper told the panel. "The House, until recently, and the Senate, have obeyed the clear command of the Constitution that actual presence was necessary to cast a valid vote or to be counted for a quorum."

But Judge Judith Rogers didn't appear convinced by that notion. In a hypothetical, the judge reasoned that even though there has to be a quorum for a 12 p.m. congressional session to begin, it still "doesn't mean there has to be an actual quorum, physical presence, at 3 p.m. when a vote is taken. That's the way the chambers have operated under their rules."

"And the fact the proxy voting existed and the House chose not to use it [before] does not necessarily decide the question," Judge Rogers emphasized, later suggesting that the coronavirus pandemic seems to be a valid reason for Congress to institute proxy votes.

Cooper responded that Congress operated for more than two centuries — through past pandemics and wars that were worse than the coronavirus. In their complaint, Republicans argued that the House met in Washington during a yellow fever epidemic in 1793, and again during the1918 pandemic, even "as more members fell ill with Spanish flu, some fatally."

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. In early September, the clerk's office reported 68 members, almost all Democrats, were registered proxies.

During Monday's hearing, Douglas N. Letter, general counsel for the U.S. House of Representatives, maintained that Republicans lacked standing to sue because they're facing no injury as a result of the new rules. The circuit court could intervene if the House had passed a law that's discriminatory, Letter argued. 

The case is under advisement. 

U.S. Circuit Judges Sri Srinivasan, Judith Rogers and Justin Walker sat on the panel for the D.C. Circuit.

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 Michael Watanabe.

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