The constitutionality of remote voting is an untested principle. As a threshold question, this uncertainty should give the House pause from transitioning wholesale to any remote voting or “virtual presence” scheme of conducting business. If challenged, remote voting would be a novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality. Engaging in an untested practice, especially when considering complex and critical legislation in response to an historic pandemic, presents risks.
Article I of the Constitution mentions in various places the need to bring Members together 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. Yet, the Constitution also explicitly provides each house with the ability to make its own rules (Art. I, Sec. 5, Cl. 2).
Given this uncertainty and the risk of pursuing a novel mode of voting on legislation, working within the current rules and practices of the House – such as passing legislation via unanimous consent or voice vote – is preferable. However, should the situation deteriorate in such a way that remote voting becomes necessary, any changes to current House rules must be as analogous to the current in-person voting practices as possible and must have appropriate safeguards in place to ensure transparency, fairness, and legitimacy.