Two House lawmakers have tested positive for the novel coronavirus, leading the House to weigh options to vote without being present in the Capitol.
With at least two of their members testing positive for coronavirus, House Democrats are recommending that they pass a nearly $2 trillion economic rescue passage by unanimous consent, meaning no lawmakers would have to be present for the vote.
If that doesn't work — only one member has to object to stop it — then House Democrats say there are other options for voting from afar, including proxy votes that could see a handful of members casting votes for others. The options are discussed in a new report commissioned by House Speaker Nancy Pelosi and released late Monday evening.
One option Democrats are taking off the table: remote electronic voting. The report, written by House Rules Committee Chair James McGovern (D-MA), determined there were too many security concerns in addition to logistical and technical challenges in the middle of the public health crisis.
"This is a moment of national emergency," McGovern wrote in a letter accompanying the report. "It is imperative that we act swiftly in the weeks and months ahead in a way that preserves the integrity of the institution so that we can continue to respond not just to this crisis, but future emergencies as well."
The simplest route is the most obvious: passing the legislation by voice vote or unanimous consent, neither of which requires the full House to be present. The report said this is "by far the best option" — using existing House rules and practices. However, it could be derailed if even one member appears on the floor to object.
Under the proxy proposal, a member of the House could be allowed to designate a colleague to vote for them in the event they are unable to return to Washington amid the coronavirus outbreak. If there are objections to a unanimous consent vote, the report said, proxy voting "is likely the best of the options available under the circumstances."
Proxy voting would require a rules change but could be quickly adopted if there was universal support for the idea, according to the report. If not, an in-person vote would be required to make the change and would mean members would have to travel back to Washington anyway.
It's unclear how much support that proposal would have. Asked if House Minority Leader Kevin McCarthy supported it, a spokesman said it was not "a preferable option."
The proxy vote could include members who are under self-quarantine after testing positive for the coronavirus or had contact with someone who tested positive, those who are caring for someone who is ill, or those who have reservations about traveling.
The proposal came as members of the House were away from Washington, awaiting an agreement in the Senate on the economic rescue package that could come up for a vote this week. Two House members, Democratic Rep. Ben McAdams of Utah and Republican Rep. Mario Diaz-Balart of Florida, have tested positive for the virus, and many more are in quarantine after having contact with people who are infected.
Voting by proxy had previously been used at the committee level but never on the House floor, according to staff. Under the rules change, a member would have to complete a form and submit it to the House. This would be allowed only during the coronavirus pandemic and would not apply to normal operating rules in the House.
The report noted that voting by proxy, like remote voting, could raise constitutional questions and be challenged in court, "namely, whether a member must be physically present in the chamber to vote." But it said that "many scholars argue" that the House has the right to determine its own rules.
Proxy voting, in which a lawmaker could cast a vote on behalf of an absent colleague, has been barred in the House since the very first Congress in 1789, according to a report by the nonpartisan Congressional Research Service.
The report, commissioned by Pelosi last week, said there were "several other routes" to have the House vote, some of them without lawmakers returning to Washington.
Beyond proxy voting, the House could temporarily increase the number of people it would take to object to a unanimous consent request, decreasing the possibility that one person could derail the whole process. But the report notes that "members who frequently disagree with the majority of the House might object to this change."
If a recorded vote becomes necessary, the report recommends practices similar to what the Senate has been doing over the last week — extending the time of votes so members wouldn’t have to crowd on the floor to cast their ballots. The report suggests that the House could make votes safer by "having Members vote in shifts, sanitizing voting stations between uses, and controlling how many people are in the chamber and their proximity to each other."
The staff report noted that even recorded in-person votes might not reflect the current breakdown of majority and minority parties if there are large numbers of members absent because they are unable to travel or under quarantine.
"In other words, the minority party could have a majority of the votes, which would not reflect the outcome of the latest election," the report said.
In a parallel to today's coronavirus pandemic, so many House members were sick with the Spanish flu or away selling Liberty War Bonds or campaigning for reelection in the fall of 1918 that the chamber was unable to have the required majority of its 435 members present to conduct business, according to the House website.
That October, the House tried approving a bill creating a reserve corps for the Public Health Service so it could send military personnel to flu hot spots in the U.S. where there were not enough doctors. An initial attempt to approve the legislation was derailed when the chamber counted 251 members missing.
The House approved the measure the next day after the fewer than 50 lawmakers in attendance agreed not to object that their scant numbers violated the chamber's rules.
The report comes as the Senate has been in session for the last week and several senators from both parties have called for remote voting. Kentucky Sen. Rand Paul, a Republican, tested positive for coronavirus over the weekend after spending time in the Capitol.
Like Pelosi, Senate Majority Leader Mitch McConnell has so far shown little interest in allowing remote votes. An official from the Senate Historical Office said it could find no instances of a senator being allowed to vote who was not physically present.