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The biggest obstacle to remote voting in Congress may be Democratic mistrust of the Supreme Court

Speaker Nancy Pelosi says there are “serious constitutional” concerns with remote voting. Is she right?

House Speaker Nancy Pelosi (D-CA) Holds Weekly News Conference
House Speaker Nancy Pelosi talks to reporters at a news conference about legislation addressing the ongoing coronavirus outbreak March 26, 2020, in Washington, DC.
Chip Somodevilla/Getty Images

Several members of Congress have coronavirus, and there is a small risk that Congress itself could become incapacitated because of the disease. There’s a much greater risk that members of Congress will be reluctant to assemble in Washington out of fear that they could become infected.

An obvious solution is to allow lawmakers to vote remotely while they are socially distancing within their homes. But House Speaker Nancy Pelosi has thus far been reluctant to implement remote voting, citing “serious constitutional, technological and security concerns” in an interview with MSNBC last week.

Technological and security barriers do, indeed, need to be overcome before remote voting is implemented — it would be a disaster if hackers are able to break into the system for counting legislative votes. But what of the constitutional concerns? Is remote voting really unconstitutional?

The short answer to these questions is that no one knows. At Pelosi’s direction, the House Rules Committee’s Democrats prepared a report laying out the challenges that would need to be overcome in order to implement remote voting. The report’s section on the Constitution is brief — only three paragraphs long — but it is more than adequate to explain the danger of implementing a novel process and then hoping the courts do not strike this process down.

“The constitutionality of remote voting is an untested principle,” the report explains. Thus, if a law enacted by remote voting is challenged in court, “there is no guarantee of a favorable ruling affirming its constitutionality.”

There are very strong constitutional arguments in favor of remote voting — and even stronger arguments that the courts have no business weighing in on whether remote voting is constitutional in the first place.

But if the House were to implement remote voting and use it to pass crucial coronavirus relief legislation, it would likely begin a journey through an unpredictable judiciary dominated by Republicans.

Remote voting is probably constitutional.

As the House Rules Committee’s report lays out, several provisions of the Constitution can be read to require lawmakers to gather together in a single location in order to conduct business: “The Constitution speaks of ‘meeting’ (Art. I, Sec. 4, Cl. 2), ‘assembling’ (Art. I, Sec. 3, Cl. 2), and ‘attendance’ (Art. I, Sec. 5, Cl. 1) in describing how Congress would conduct its business.”

At the same time, however, the Constitution also “explicitly provides each house with the ability to make its own rules (Art. I, Sec. 5, Cl. 2).” The document provides that “each House may determine the rules of its proceedings,” suggesting that the final word on whether a particular bill was enacted using proper procedures rests with the House itself.

This reading is bolstered by the Supreme Court’s decision in United States v. Ballin (1892), which involved the Constitution’s provision stating that a “majority” of the House “shall constitute a quorum to do business.” At issue was whether members who are present for a vote, but do not actually cast a vote, count toward this quorum.

The Court, in its decision, did not resolve this question once and for all. Instead, it left the matter entirely up to the House. As the Court explained, “the Constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.”

By similar reasoning, the Constitution prescribes no method of determining how votes are cast by individual members, so it should be up to the House to determine whether a vote may be cast remotely.

Yet while there are very strong arguments that remote voting is legal, many Democrats are understandably wary that this Supreme Court would agree with these arguments. The Court has been willing to fly in the face of overwhelming legal consensus before.

In NFIB v. Burwell (2012), the Court came within one vote of striking down Obamacare and significantly weakened its weakened Medicaid expansion. But before NFIB was decided, the argument in that lawsuit was widely viewed as a nonstarter. An American Bar Association poll of Supreme Court experts found that 85 percent believed the Affordable Care Act would be upheld, and another 9 percent believed the Court would dismiss the case for lack of jurisdiction.

Under Chief Justice John Roberts’s leadership, the Court has become especially likely to overrule precedent in ideologically divided 5-4 decisions. Though the Court sometimes overruled precedents before Roberts joined the Court, “about 71% of overulings are 5-4 under Roberts, compared to about 31% under” Roberts’s predecessor Chief Justice William Rehnquist.

Governance, especially experimental governance, requires a great deal of social and political trust among partisans. And that trust simply does not exist between Democrats in Congress and Republicans on the Supreme Court.

It’s possible to design a system where the justices would rule on the constitutionality of remote voting from behind a veil of ignorance regarding which party might benefit from their decision — and several states have.

Many states permit their highest court to issue “advisory opinions” — meaning that the justices can rule on a particular issue before a live controversy arises between two parties. In Massachusetts, for example, “each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”

If the Massachusetts legislature wished to adopt remote voting, it could ask the state’s supreme judicial court for a ruling on whether remote voting is constitutional — and the justices would rule on its constitutionality before they were considering a specific legal provision that one party supports and the other opposes.

But federal advisory opinions are currently unconstitutional, so there would need to be a constitutional amendment to permit them. And there are good reasons why there should be strict limits on the Supreme Court’s ability to issue such opinions, lest a Republican president collude with a Republican Supreme Court to strike down a bevy of laws.

In the absence of such advisory opinions, however, remote voting faces an uncertain future. At least in the House, it’s not happening without Democratic buy-in. And that requires Democrats to potentially place the fate of coronavirus relief legislation in a Republican Court’s hands.

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