Attorneys for the House of Representatives and some of its Republican members on Friday argued over whether a shield blocking litigation against lawmakers applied to a lawsuit challenging the chamber's proxy voting rules adopted during the pandemic.

House Republicans, as well as individuals whose members of Congress used the proxy voting system, filed the complaint in May, alleging the system is unconstitutional and lawmakers must be physically present to have their votes count. Otherwise, their attorneys argue, it dilutes the votes of members who do appear in person.

Attorney Charles "Chuck" Cooper reiterated those points during a telephonic hearing before U.S. District Judge Rudolph Contreras on Friday. The GOP members are represented by Cooper's firm, Cooper & Kirk, as well as attorneys with Berke Farah. Firm partner Elliot Berke is outside counsel for House Minority Leader Kevin McCarthy and House Republican Conference Chairwoman Liz Cheney.

On Friday, Cooper pointed out that Congress has never adopted proxy voting rules despite past health crises, such as a yellow fever epidemic in 1793 and the Spanish flu pandemic of 1918. And he read out loud text from the Constitution that invokes the physical presence of the members.

The speech and debate clause, which blocks lawsuits against members of Congress over legislative actions, seems key to the lawsuit. House attorneys for Speaker Nancy Pelosi and other officials, led by House general counsel Douglas Letter, argue the clause forecloses the lawsuit.

Contreras asked Cooper if he were to rule the shield applies, if that's "dispositive, there's nothing left of the case?"

Cooper initially paused before telling Contreras that, if the judge found the protection applied to not just members who approved the proxy voting rules, but also to counting valid votes and to nonmembers involved in the administrative processes of voting, "that's game over."

However, Cooper argued that doing so would result in a blanket ruling that would prevent members of Congress from being able to challenge discriminatory House resolutions, such as one that directed men's votes to be counted twice while only counting women's votes once.

Letter later said Cooper "has a very serious problem" of overcoming the speech and debate shield. "I find it very difficult to think of something that is more central for legislating than voting, and voting by the members of Congress," the House counsel added.

When Contreras asked Letter if Cooper is correct in saying a ruling finding the speech and debate protections apply in this case would prevent members from challenging discriminatory House rules, Letter replied, "I'm not taking that position because I don't have to."

He said there could be cases where the clause would apply, and others where "it may very well be that speech and debate doesn't apply if something is highly discriminatory."

Letter also argued Cooper is incorrect in claiming members who vote on behalf of others are voting multiple times, saying the lawmakers are simply "transmitting the votes," like the electronic voting system or the clerk who tallies the vote totals. Cooper later asserted that those members are in fact only voting once, because any votes they cast for other lawmakers are "invalid."

The lawsuit is one of many pieces of litigation handled by Letter's office. The House, as it has in several other lawsuits, turned to O'Melveny & Myers to assist in the case. Among the partners involved is Michael Dreeben, the former longtime deputy U.S. solicitor general who also served as part of Special Counsel Robert Mueller III's investigation.

At the conclusion of the nearly three-hour hearing, Contreras said he doubts he "will be the last word on this" and said he would issue a decision "as quickly as practicable so I can send everyone on their way."

Contreras also asked Cooper, an alumnus of the University of Alabama, if there was "going to be a quorum in the stadium" when the school's football team returns. Cooper, laughing, said he doubts it.

This is far from the first case Letter and Cooper have argued against each other: Each attorney referred to the other as an "old" or "longtime friend" throughout the hearing.

Cooper and Letter were on opposing sides of a U.S. Supreme Court case on similar claims of dilution of voting power. More recently, Cooper represented Charles Kupperman, a former deputy to ex-national security adviser John Bolton in a challenge over a congressional subpoena issued for Kupperman's testimony in last year's impeachment inquiry. House investigators withdrew the subpoena, and the case—viewed as a proxy of what would happen if a similar subpoena were issued to Bolton—was dismissed.

Letter and Cooper jokingly baited each other ahead of Friday's arguments, after Letter's connection sounded faint on the conference line. After Letter asked if he could be heard, he said, "it feels like I'm yelling at you."

"I'm accustomed to that, Doug," Cooper said, to laughs.

"I don't have your southern gentility," Letter replied.

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