Speaker Nancy Pelosi says there are “serious constitutional” concerns with remote voting. Is she right?
Congress could become incapacitated either by members contracting coronavirus or their reluctance to assemble and risk contagion. Remote voting might be an answer, given surmounting the technological and security challenges. But constitutionality is also a serious barrier, raising the danger of implementing a novel process at risk of being struck down by court challenge. Provisions of the Constitution are open to the interpretation that lawmakers are required to gather together in a single location, the Founding Fathers of course unable to be be faulted for not anticipating cyberspace or virtual reality. However, legislative bodies are empowered to establish their own rules about how votes are to be cast. Democrats worry that the Supreme Court under Roberts would not agree with this argument, especially given the vastly increased tendency of this Court to overturn precedent. The author suggests a mechanism of getting an advisory ruling on the constitutionality of remote voting before a test case is brought, so that the partisan Court would not be considering a specific legal provision that one party supports and the other opposes. However, although used on the state level, Federal advisory opinions are currently unconstitutional and would require an amendment to permit them.