Covid-19, Constitutions, and a Connected World: Assessing the Constitutionality of Remote Voting in Legislatures
| Publication year | 2021 |
| Citation | Vol. 100 |
100 Nebraska L. Rev. 549. COVID-19, Constitutions, and a Connected World: Assessing the Constitutionality of Remote Voting in Legislatures
COVID-19, Constitutions, and a Connected World: Assessing the Constitutionality of Remote Voting in Legislatures
Comment [*]
TABLE OF CONTENTS
I. Introduction .......................................... 550
II. Background ........................................... 552
A. A Brief History of the COVID-19 Outbreak and Its Effects ............................................ 552
B. The Legislative Response to the Outbreak ......... 554
III. Federal Level: There Are No Constitutional Barriers to Remote Voting in Congress ............................ 555
A. Members of Congress Lobby for Remote Voting in Response to the COVID-19 Outbreak .............. 555
B. Congress's Rulemaking Power in the Context of Remote Voting .................................... 556
C. The Political Question Doctrine Would Likely Lead the Court To Reject a Challenge to the Rulemaking Power ............................................. 557
D. The Quorum Requirement as a Potential Express Limitation to Congress's Rulemaking Power in the Remote Voting Context ............................ 561
E. Other Considerations: The Use of Technology in Constitutional Settings, Previous Actions To Address Mass Vacancies in Congress, and Technological Hurdles to Remote Voting ........... 566
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IV. Execution: Setting Chamber Rules To Allow for Remote Voting ................................................ 569
V. Remote Voting in the Nebraska Legislature Is Constitutional and Should Be Implemented ............ 571
A. Survey of Remote Voting at the State Level ........ 571
B. Remote Voting in Nebraska: Constitutional Considerations .................................... 572
VI. Conclusion ............................................ 575
I. INTRODUCTION
In late December 2019, Chinese health officials notified the World Health Organization (WHO) of a new cluster of pneumonia cases in Wuhan City, Hubei Province of China. [1] Over the next several months, this initial outbreak would transform into one of the most widespread global pandemics of the past century. The cause of the pandemic was identified as a new novel coronavirus, and the disease it causes was termed COVID-19. [2]
As the disease continued to spread, governments and their agencies-including the Centers for Disease Control and Prevention (CDC) in the United States-attempted to put measures into place to slow the spread of the highly contagious virus. [3] One of the primary measures was to restrict and warn against large gatherings of people, which could lead to higher transmission rates of the virus. [4]
By their very nature, sessions of Congress and state legislatures involve large gatherings that run counter to guidance or restrictions against large groups. [5] The pandemic immediately prompted calls for suspending sessions or implementing distancing protocols [6] and natu-
2rally led some to consider the proposition of allowing members to participate and vote remotely due to health and safety concerns. [7]
The U.S. House of Representatives took a step towards remote voting by allowing remote proxy voting by members but still does not allow for direct remote voting by electronic means. [8] The resolution allowing proxy voting did not permit it indefinitely, and the practice has come under intense political scrutiny. [9] Some Members of Congress, such as House Majority Leader Steny Hoyer, have advocated for an expansion of remote voting via an electronic system that would allow members "indisposed by pregnancy, serious illness or even a natural disaster" to participate remotely [10] Others, such as House Minority Leader Kevin McCarthy, have argued proxy voting undermines the essential in-person nature of Congress and have vowed to fight against renewing the resolution. [11]
Despite this opposition, the chamber should use the reauthorization requirement as an opportunity to expand remote voting to include remote participation and voting by electronic means. Additionally, while neither the U.S. Senate [12] nor the Nebraska Legislature [13] has adopted provisions allowing members to cast votes remotely during times of emergency, now is the appropriate time to do so. Part II of this Article will provide relevant background information on the COVID-19 outbreak. Parts III and IV seek to address any potential constitutional barriers and offer solutions for remote voting at the national level. Part V will evaluate the constitutionality of remote voting in the Nebraska Legislature. This Article will demonstrate that while there may be practical hurdles to overcome in order to implement remote legislative voting, neither the U.S. Constitution [14] nor the Constitution of the State of Nebraska [15] provide any detrimental barriers.
3II. BACKGROUND
A. A Brief History of the COVID-19 Outbreak and Its Effects
WHO leaders were initially notified of a pneumonia outbreak of unknown origin on December 31, 2019. [16] As of January 3, 2020, there were forty-four hospitalized patients, with eleven reported as being severely ill. [17] An undisclosed number of the patients were either dealers or vendors at the Hunan Seafood market in Wuhan, which authorities closed for sanitation and disinfection on January 1. [18] The WHO initially noted the link to the wholesale fish and live animal market could indicate an exposure link to animals. [19] On January 7, 2020, Chinese officials identified and isolated a new type of novel coronavirus (nCoV) [20] as the cause of the outbreak. [21] China shared the genetic sequence of the new virus with the WHO on January 12. [22] On February 11, the WHO announced that the subsequent respiratory illness nCoV causes would be known as COVID-19. [23]
By the end of January 2020, the virus had spread considerably throughout China, and confirmed cases were beginning to emerge
4around the globe. [24] At the end of January, China reported 7,736 confirmed cases and suspected 12,000 more, and another eighty-two cases were confirmed across eighteen other countries [25] including the United States, where the first case was confirmed on January 22 in Washington State. [26] On January 31, the WHO declared a public health emergency for just the sixth time, and the Trump administration declared a public health emergency in the United States on February 3. [27]
On March 11, 2020, the WHO declared COVID-19 a global pandemic, with WHO chief Tedros Adhanom Ghebreyesus calling for countries to take "urgent and aggressive action. We have rung the alarm bell loud and clear." [28] President Donald Trump soon officially declared a national emergency in the United States on March 13, unlocking new sources of federal assistance to help battle the virus. [29]
Both the health and economic consequences of the pandemic were profound. By the time the WHO finally declared COVID-19 to be a pandemic in March, the Dow Jones Industrial Average had shed twenty percent of its previous record high, set just a month earlier. [30] Major events such as the National Collegiate Athletic Association basketball tournaments, [31] the National Basketball Association season,
5and presidential campaign rallies were cancelled in an effort to control the spread of the virus through large gatherings. [32] States and local governments began imposing restrictions on access to businesses such as dine-in restaurants, theaters, and other non-essential businesses, while others voluntarily closed their offices. Overall, authorities urged Americans to stay home as much as possible and self-quarantine for at least fourteen days after exposure to the virus [33] to protect essential workers and the general public. Unsurprisingly, the economic downturn, event cancellations, and restrictions on gatherings and non-essential businesses led to a significant rise in unemployment. [34]
The national unemployment rate in April 2020 rose to 14.7%-a surge of 10.3 percentage points from the previous month-with non-farm payroll employment falling by 20.5 million jobs. [35] The 14.7% unemployment rate represented both the highest rate and the largest over-the-month increase in the history of available data dating to January 1948. [36] The sharp increase in rates was attributed to the COVID-19 pandemic and efforts to contain it. [37]
B. The Legislative Response to the Outbreak
Congress took action to attempt to address the health, safety, and economic impacts of COVID-19. At the national level, on March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which provided stimulus payments to individuals, expanded unemployment coverage, supported employers by way of paycheck protection loans, suspended student loan payments, temporarily lifted penalties for early withdrawal from retirement accounts, and more. [38] The total cost of the package was
6estimated at $2 trillion. [39] State governments were also active in passing emergency appropriations for COVID-19 relief efforts. [40]
While legislatures at the national and state levels took take action, larger questions remained about the potential dangers of meeting in groups-including legislative sessions-in the wake of the outbreak. [41] Naturally, these questions contemplated the necessity of in-person...
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