Supreme Court denies Kevin McCarthy’s challenge to proxy voting in House

“Members of Congress should show up to work on behalf of their constituents, just as they have since our nation was founded,” McCarthy spokesperson Mark Bednar said in a statement following the court’s announcement. “We can’t rely on a separate branch of government to make Congress do their jobs as intended by the Constitution, and if Republicans earn back the majority, proxy voting will be eliminated on Day One.”

To vote by proxy, lawmakers must sign a letter with the House clerk that allows another member to vote at their direction and on their behalf. Proxy letters state: “I am unable to physically attend proceedings in the House Chamber due to the ongoing public health emergency.”

In practice, the proxy privilege has been widely used by members of both sides of the aisle, often for non-pandemic reasons. McCarthy isn’t the only top House Republican who has repeatedly vowed to kill the practice if they take control of the chamber in the 2022 midterm elections.

“We believe in in-person voting. When Republicans win back the House, that’s what we are committed to,” GOP Conference Chair Elise Stefanik (R-N.Y.) said at a press conference with House GOP leaders in the Capitol on Thursday. She has maintained her opposition to the practice, but voted by proxy in the weeks after giving birth to her first child last year.

Texas Rep. Chip Roy (R-Texas) is the last rank-and-file lawmaker on McCarthy’s lawsuit after more than 150 Republicans removed their names — many have themselves voted by proxy as the pandemic has dragged into another calendar year. Roy told POLITICO in December that the removal of names didn’t impact the constitutional argument he and McCarthy are trying to make, but acknowledged that having plaintiffs who used the proxy voting process could have hurt the party’s argument.

Roy said in a statement Monday that while “I believe strongly that Congress should indeed police itself,” the court should get involved in the proxy voting question.

“This case raises the important question of the Constitutionality of roughly 18,000 proxy votes cast by Members of Congress. We as members of this body have the duty and responsibility to our Constitution not to circumvent it, especially for mere personal convenience,” Roy said. “Furthermore, the legislative process cannot properly be performed by proxy; we have a moral duty to the Americans we represent to actually show up for work and deliberate the issues affecting them in person.”

Speaker Nancy Pelosi is using the high court’s denial to take up the proxy voting challenge to bolster the House’s case in another GOP lawsuit challenging the mask mandate in the House chamber. In the mask lawsuit, brought by Reps. Thomas Massie (R-Ky.) and Marjorie Taylor Greene (R-Ga.), Pelosi leaned on the lower court rulings in the McCarthy proxy voting case to support their defense against the suit.

Now, the Supreme Court’s decision to uphold proxy voting gives their position in the mask lawsuit even more weight, according to a “notice of supplemental authority” filed on behalf of defendants Pelosi, House Sergeant at Arms William J. Walker and House Chief Administrative Officer Catherine Szpindor.

Olivia Beavers and Kyle Cheney contributed to this report.

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