A few weeks ago the Supreme Court denied certiorari in a case brought by House Republicans to challenge the constitutionality of the House’s proxy voting rule, which allows members, during a period of “public health emergency,” to vote on legislation and other matters without being physically present. The effect of the Court’s decision was to leave standing the D.C. Circuit’s decision to affirm the district court’s dismissal of the lawsuit on grounds of the Speech or Debate Clause. Speaker Pelosi praised the Court’s action and declared “[b]oth the Constitution and more than a century of legal precedent make clear that the House is empowered to determine its own rules—and remote voting by proxy falls squarely within this purview.” Yesterday the Speaker, based on a notification from the Sergeant-at-Arms and the Office of Attending Physician, extended the period of proxy voting through March 30, 2022, at which point the “public health emergency” will have lasted almost two years.
Contrary to the Speaker’s suggestion, neither the Supreme Court’s action nor the rulings of the lower courts say anything about the constitutionality of proxy voting. To the contrary, both the constitutionality and necessity of the House’s rule remain live issues, and the House should not be misled into thinking that the courts have resolved them. Continue reading “Why the Courts Have NOT Decided the Constitutionality of Proxy Voting”