In response to health concerns from the COVID-19 pandemic, the House of Representatives changed its rules to allow proxy voting. Proxy votes would count for quorum and voting as if the representative were present in the chamber. So far, 74 representatives have indicated that they may vote by proxy.

House Republicans have opposed proxy voting as unconstitutional and have already sought legal action to prevent the rules change. However, if House Republicans do not take advantage of proxy voting, as they have promised, then a court is unlikely to examine the merits of the lawsuit, leaving the constitutionality of proxy voting undecided.

Constitutional Background

The Constitution has three applicable provisions dealing with potential proxy voting. First, the Constitution sets that “a Majority of each [House of Congress] shall constitute a Quorum to do Business.” The Supreme Court has interpreted this clause to mean “[a]ll that the Constitution requires is the presence of a majority, and when that majority are present, the power of the house arises.” Specifically, “when the Journal of [a House of Congress] indicates that a quorum was present, under a valid [] rule, at the time the [House of Congress] passed a bill, we will not consider an argument that a quorum was not, in fact, present.”

Second, the Constitution guarantees that “[e]ach House may determine the rules of its proceedings”. The Supreme Court has interpreted this to mean that “[The House of Representatives] may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. . . . It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.”

Third, the Constitution requires that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” I am not aware of any Supreme Court cases interpreting this requirement.

Current Quorum Practice

When in session, a quorum is not usually present in either house of Congress.  Instead of listening to other members speak to the C-Span cameras, members usually spend their time outside the floor (but still near the Capitol) going to hearings, marking up legislation, and meeting with constituents.  Even though a quorum is not present on the floor, the rules assume that a quorum is present unless a member specifically questions the presence of a quorum. 

For instance, the Senate will often take official action without a quorum being present. Traditionally, the Senate approves most non-controversial nominations and legislation through unanimous consent. First, the Senate Majority Leader and Minority Leader will discuss potential business. The leaders will then ask each of their party’s senators if they object to any of the actions. If no senators object, the Senate Majority Leader will then ask for unanimous consent that the action be approved. With nobody objecting, the measure is considered passed.

House Republicans’ Lawsuit

Initially, House Republicans’ lawsuit is likely to fail from potential standing, nonjusticiable political question, or ripeness issues. Specifically, House Republicans would be challenging a rule of the House of Representatives, which the Constitution bars.

However, the quorum requirement provides a constitutional backstop. There will likely be some law passed under proxy voting and then a court will have to examine the validity of the law, if challenged.

A court will begin any analysis of whether a quorum is present by examining the Journal of the House of Representatives. House Republicans, knowing this, will likely object before a roll-call vote that a quorum is not present.

However, even if proxy voting were not used, the Journal would likely indicate that a quorum is present. Assuming all 197 House Republicans are present in the House of Representatives chamber, only 19 Democrats would need to be present to provide a quorum in the chamber. Although some Republicans may be absent for individual votes, the number of House Democrats required to be in the chamber would still be relatively small. As such, a court would not need to decide whether proxy voting meets the constitutional standard for a quorum. Even if only members present on the House of Representatives floor can count for quorum requirements, the requirement would likely be met.

Turning to proxy voting counting for a subsequent roll-call vote (or yeas and nays as the Constitution calls it), House Republicans will likely invoke the constitutional requirement that votes be entered on the Journal and claim that the Constitution prevents proxy voting. However, the Constitution only imposes a ministerial requirement that the votes be “entered on the Journal”. The House of Representatives will likely follow that requirement. How the vote takes place is not restricted by the Constitution and is thus up to the House of Representatives’ rules, which courts will likely not overturn.

Conclusion

House Republicans do have one method for likely forcing courts to examine the constitutionality of proxy voting. All but one House Republican could refuse to show up for a vote and the individual House Republican could ask for a quorum call. House Democrats would then need to have 215 of their 233 members physically present in the chamber to make the proxy voting issue moot. Given the number of House Democrats submitting proxy authorizations, House Democrats are unlikely to have 215 members physically present.

Paradoxically, the likely only way for House Republicans to get a court to decide their suit on the merits is to not be physically present themselves.