One of Pelosi’s concerns about adopting remote voting, especially in the near term, is that legislation passed under such a system could be challenged as unconstitutional. She doesn’t want any coronavirus relief to be held up because of a court challenge.
Article I, Section 5 of the Constitution requires a quorum, defined as a majority of members in each chamber, be “present” to pass legislation. An 1892 Supreme Court decision in United States v. Ballin approved a change to the House’s quorum requirements and said that the Constitution “has prescribed no method for determining one is present.”
A Congressional Research Service Report outlining constitutional questions of remote voting released April 14 says that if either chamber established a system that allows lawmakers to participate remotely, “it would appear arguable that both they and the body to which they belong are ‘in a position to do business,’” another standard set by the Ballin case.
CRS also acknowledges the chambers themselves determine a quorum and that changes to House or Senate rules may provide flexibility to establish that those absent but voting or participating remotely may be counted toward a quorum.
“A rule permitting remote voting in the time of a pandemic could be viewed as responding to two articulated fears of the Framers: it would arguably ensure that the majority quorum requirement not lead to such ‘inconvenience’ as to severely undermine the national legislature’s ability to operate; and remote voting might protect members in far-off jurisdictions (and the interests of the regions they represent), who in the time of COVID-19 may be more disadvantaged by difficulties of travel then those within close proximity to Washington, D.C. who can return to the Capitol more easily," the CRS report states.
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April 16, 2020 at 02:16AM
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Remote voting, hearing changes may come too late for pandemic use - Roll Call
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