[00:00:00] Speaker 00: Case number 20-5240, Kevin Owen McCarthy, the Honorable, in his official capacity as House Minority Leader and member of the United States House of Representatives for the California 23rd Congressional District et al. [00:00:14] Speaker 00: Appellants, versus Nancy Pelosi, the Honorable, in her official capacity as Speaker of the House of Representatives and member of the United States House of Representatives for the California 12th Congressional District et al. [00:00:26] Speaker 00: Mr. Cooper for the Appellants, Mr. Leder for the Appellees. [00:00:31] Speaker 01: Good morning, counsel. [00:00:33] Speaker 01: Good morning, Your Honor. [00:00:34] Speaker 01: Good to see you. [00:00:35] Speaker 01: Mr. Cooper, please begin when you're ready. [00:00:37] Speaker 05: Thank you very much, Mr. Chief Judge. [00:00:39] Speaker 05: And may it please the court, Charles Cooper, for the appellants before you who are the plaintiffs in the court below. [00:00:46] Speaker 05: The central issue in this case is a speech and debate clause issue. [00:00:50] Speaker 05: And that question is whether the defendant house officers in this case are immune from this suit, this suit in which we are challenging [00:01:00] Speaker 05: their acts in executing and carrying out the proxy voting process established by House Resolution 965. [00:01:08] Speaker 05: And we submit they are not immune from this suit. [00:01:11] Speaker 05: And the reason relates to this court's clearly drawn temporal distinction following Supreme Court precedent between legislative acts and things integral to the legislative process, which are immune [00:01:30] Speaker 05: on the one hand, and acts taken in execution or carrying out such legislative acts which are not immune. [00:01:37] Speaker 05: And this court's case in Walker versus Jones articulated this temporal distinction. [00:01:43] Speaker 05: It's a temporal distinction very, very clearly. [00:01:46] Speaker 05: In that case, then Judge Ruth Bader Ginsburg wrote for Walker, for the court in Walker, that the Supreme Court has drawn a key distinction [00:01:56] Speaker 05: she said, between acts that are legislative in nature and acts that, in her words, execute a legislative order or carry out a legislative direction. [00:02:07] Speaker 05: And Judge Ginsburg, then Judge Ginsburg, then explained the temporal quality of that distinction. [00:02:15] Speaker 05: This is what she said, and it's worth quoting her words in full, Your Honors. [00:02:21] Speaker 05: The Supreme Court has instructed that execution of a legislative decision is not cloaked with speech or debate immunity, for execution or carrying out legislative directions post dates what the clause protects, the process leading up to an issuance of the legislative direction. [00:02:43] Speaker 05: And so in that case, the legislative subcommittee deliberations and ultimate decision to fire the House Food Service Manager, those were immune from challenge. [00:02:56] Speaker 01: Can I ask a question about this temporal dimension as you describe it? [00:03:02] Speaker 01: Yes. [00:03:02] Speaker 01: I understand the point, I think, where you have legislation and then it's executed, and the execution itself doesn't have to do with legislating. [00:03:10] Speaker 01: What seems potentially different about this case is that you have a house rule and then it's executed, but the execution itself has to do with legislating because the house rule is about how to vote. [00:03:22] Speaker 01: And so it seems different from the principle that you're identifying in Walker because here the acts that are coming about that you're deeming the executive acts [00:03:37] Speaker 01: Are themselves intimately bound up in the process of legislating and in fact in Walker itself. [00:03:41] Speaker 01: For example, the opinion says activities integral to the legislative process may not be examined. [00:03:47] Speaker 01: But peripheral activities not closely connected to the business of legislating do not enjoy speech or debate shelter. [00:03:53] Speaker 01: And when I look at that phrase. [00:03:54] Speaker 01: I think that what we're talking about here. [00:03:56] Speaker 01: seems integral to the legislative process, and it is closely connected to the business of legislating. [00:04:02] Speaker 01: Even though I take your temporal point, it's an execution of a House rule, but the execution itself has to do with the business of legislating. [00:04:09] Speaker 05: Well, Your Honor, I would suggest to you that that is not a dispositive or meaningful distinction in the court's distinction, again, between those things that lead up to a legislative directive, the things that are bound up with deliberations and what led to House Resolution 965, any more than, for example, in the Powell case, [00:04:39] Speaker 05: the activities that the congressional officers, in that case, the sergeant at arms, the doorkeeper, were ordered by a House resolution. [00:04:53] Speaker 05: Your Honor, to undertake, including barring from voting, a member on the House floor. [00:05:03] Speaker 05: So there again, that act itself related directly to voting. [00:05:08] Speaker 05: Voting, yes, for one member, but it still was bound up with the question of voting. [00:05:15] Speaker 05: The other thing I would say, Your Honor, on that point is that, [00:05:24] Speaker 05: It is certainly true that voting, as a general matter, is integral, of course, to the legislative process. [00:05:34] Speaker 05: Many cases have recognized that. [00:05:36] Speaker 05: No one could deny it. [00:05:38] Speaker 05: But proxy voting is a different thing altogether. [00:05:42] Speaker 05: That can't be considered as integral to the legislative process, Your Honor, because it's never happened before. [00:05:52] Speaker 05: It's hardly plausible. [00:05:55] Speaker 05: that something that's unprecedented, has never happened before, is somehow integral to legislation and legislative process. [00:06:06] Speaker 05: Your Honor, the Congress hasn't been kind of stumbling through its 231-year history [00:06:15] Speaker 05: unable to use and never attempting to use some type of feature or tool that is integral to the deliberative process. [00:06:32] Speaker 05: And so to return to my central point, which concerns this temporal distinction, [00:06:43] Speaker 05: I want to emphasize that nothing in this case challenges any deliberation, any hearing, any subpoena, or any vote that led up to the enactment of 965. [00:06:57] Speaker 05: To the contrary, we seek only relief against congressional officers for their acts after passage of House Resolution 965 in executing and carrying it out. [00:07:10] Speaker 05: Now, the court below [00:07:12] Speaker 05: placed a controlling emphasis on the consumer union case. [00:07:20] Speaker 05: And I wanna address that case because far from controlling in this circumstance, we respectfully submit, it is entirely distinguishable and distinguishable at three different levels. [00:07:36] Speaker 05: First, it is not a speech or debate clause case. [00:07:42] Speaker 05: It's a hybrid case in which this court held that the political question doctrine and the speech or debate clause operate together inextricably to require dismissal of the plaintiff's claim in that case and claim that the plaintiff there, Consumers Union, had been unconstitutionally denied access to the press gallery in the house. [00:08:06] Speaker 01: On that point, Mr. Cooper, we'll go back to the Walker opinion that you started off with. [00:08:11] Speaker 01: Walker describes, you're right, of course, that the opinion of Consumers Union invokes both modes of analysis, but Walker describes Consumers Union in terms of a speech or debate conclusion. [00:08:28] Speaker 01: Yes. [00:08:29] Speaker 01: I don't know that we in Walker looked back at Consumer's Union and says it has nothing to do, we can't draw lessons about speech or debate because it was bound up with political question notions as well because the way Walker describes Consumer's Union is that it had to do with seeding the press in the House and Senate galleries and that was integral to legislative machinery and thus were immune from judicial review by virtue of the speech or debate clause. [00:08:54] Speaker 05: Fair point, Your Honor. [00:08:56] Speaker 05: I would point out that in this court's decision in Barker, the court recognized the fact that the decision itself was bound up with political question and speech or debate. [00:09:10] Speaker 05: But your honor, even if the court, despite the admonition by the Consumers Union Court itself, [00:09:21] Speaker 05: that it thought it would be improper to view either political question or speech or debate side of its analysis in isolation. [00:09:30] Speaker 05: If the court does view speech and debate in that case as in isolation, it's still readily distinguishable because that case, Your Honor, is not one that falls neatly [00:09:46] Speaker 05: in this temporal distinction that I previously outlined and that we've discussed, Mr. Chief Judge, it doesn't because in that case, and I should say before proceeding that our case does fall neatly within that distinction. [00:10:04] Speaker 05: And for that reason and that reason alone, we prevail under the speech or debate clause. [00:10:10] Speaker 05: But Your Honor, [00:10:14] Speaker 05: Reason that it doesn't fall neatly within that temporal distinction is the third basis for distinguishing that case. [00:10:23] Speaker 05: And the court emphasized in Consumer's Union that the process by the Periodicals Association in that case of policing press access to the House chamber took place on an ongoing day in, day out basis. [00:10:40] Speaker 05: as the court put it, in the regular course of the legislative process. [00:10:45] Speaker 05: And so in that regard, what that association was doing on a day in, day out basis was much the same as what the House chaplain does essentially every day as it opens legislative sessions, which was at issue before this court in the Barker case. [00:11:07] Speaker 05: And so the question simply boiled down to, in both the Barker case with the legislative chaplain and in consumers union with respect to the association, whether or not those ongoing day in day out activities were an integral part of the deliberative and communicative processes of the house. [00:11:29] Speaker 05: The court in Barker said no, the legislative chaplain activity is not. [00:11:34] Speaker 05: The court in Consumer's Union said, yes, it is. [00:11:38] Speaker 01: So is that how you deal with the temporal part of Consumer's Union? [00:11:41] Speaker 01: Because Consumer's Union in some ways could be described as parallel to this one, and that that also involved rules. [00:11:47] Speaker 01: And then the particular case involved a particular implementation of the rules after the rule was adopted. [00:11:52] Speaker 01: And that's the way you've described this case, too. [00:11:54] Speaker 01: Now, one thing you could say potentially is, [00:11:57] Speaker 01: Yeah, but that happened fairly regularly. [00:11:58] Speaker 01: So every time you were implementing the rule, you are also kind of carrying on this daily interaction with the rule, whereas here You could, you could argue that it's more sporadic. [00:12:08] Speaker 01: But then when a when a vote is taken that involves if more than one is vote is taken that involves proxy votes. [00:12:17] Speaker 01: Then you're necessarily in this kind of in between period where you're anticipating another proxy vote coming along later also [00:12:24] Speaker 05: Your Honor, you're making a very fair point. [00:12:28] Speaker 05: And I think that the Walker case does indeed understand what was happening in Consumer's Union as not falling in to this temporal distinction that the court emphasized in that case. [00:12:44] Speaker 05: Because if it had viewed it that way, it would have had a very hard time not understanding what the Periodicals Association was doing. [00:12:54] Speaker 05: as not executing congressional orders. [00:12:59] Speaker 05: So it did view, as I think the Court has just suggested, and the ongoing [00:13:09] Speaker 05: regular day in day out process, much as I say, analogous to the Chaplain, the House Chaplain in the Barker case, as outside of this execution versus legislative act dichotomy. [00:13:28] Speaker 01: And Walker did say in reference to Consumers Union, that Consumers Union immediately concerned House consideration of proposed legislation. [00:13:36] Speaker 01: And so it's looking at [00:13:38] Speaker 01: the effect of the press gallery rule in the context of the legislation that's being considered while the folks are being seated, right? [00:13:49] Speaker 01: And so in a way it's talking, the parallel you would say is, well, by parity of reasoning here, the House rule has to do with the tabulation of votes in connection with a proposed legislation that's yet to come to pass. [00:14:05] Speaker 05: Well, that's right, Your Honor. [00:14:09] Speaker 05: But if I'm completely following the court's point, but Your Honor, I would direct the [00:14:19] Speaker 05: the Court's attention to how then Judge Ginsburg framed Consumer's Union and why it was integrally involved in the political, in the legislative process. [00:14:36] Speaker 05: The Court said that it involved regulation of the very atmosphere in which lawmaking deliberations occur, Your Honor, that that [00:14:46] Speaker 05: that point in and of itself sprang from the reality that the delegated responsibility for the Periodical Association was to protect legislators themselves in the chamber from the harassment of [00:15:09] Speaker 05: News reporters actually those masquerading as news reporter who actually lobbying and otherwise import tending the legislature. [00:15:17] Speaker 05: So the very atmosphere of the legislative process was at stake in that case that is integral the court. [00:15:25] Speaker 05: Your Honor, for example, again, in Barker, the legislative prayer opening every session, Your Honor, is not, and so therefore is not protected by a speech or debate. [00:15:40] Speaker 05: Here, again, I would reiterate that the actions taken by the congressional [00:15:52] Speaker 05: by the congressional officers in this case can't be viewed, we would submit respectfully, as integral to the legislative process, because proxy voting itself can't be viewed that way. [00:16:07] Speaker 05: It is, as I mentioned earlier, it's unprecedented. [00:16:11] Speaker 05: And your honor, something that has never happened in 231 years, it seems to us very difficult to say is integral to a deliberative process and a legislative process that has worked well. [00:16:27] Speaker 01: I mean, that does get in some measure to the merits of why the proxy voting [00:16:33] Speaker 01: is or isn't something that falls within the compass of the something that the House is permitted to allow and can I can I ask you. [00:16:41] Speaker 01: shift gear for just one second and ask you one question about standing. [00:16:44] Speaker 01: Although I don't I don't want to I don't want to take my colleagues away from speech or debate if they have some questions on that, but I have a standing question for you and I know that the district court didn't. [00:16:56] Speaker 01: ultimately rule on standing, but the issue was before and both sides have briefed it amply in our court. [00:17:03] Speaker 01: Is your theory of standing, does it mean that any time it's easier for someone else to cast a vote, then there's injury for the person, the legislator who's bringing the claim? [00:17:17] Speaker 01: Because I'm not saying that's necessarily wrong, but it seems to me that's effectively your theory because your idea is, [00:17:25] Speaker 01: Our no votes would carry more weight if somebody who had a yes vote couldn't vote. [00:17:35] Speaker 01: And so something that makes it a little more difficult for that person to vote, say, harder to show up to vote. [00:17:42] Speaker 01: Anything that makes it easier for someone else to cast a vote seems like it potentially imposes an injury on somebody else who's casting a vote. [00:17:55] Speaker 05: Your honor, that is not our claim. [00:17:59] Speaker 05: Our claim is simply that if you assume, as you must, [00:18:07] Speaker 05: for purposes of standing, that proxy votes, if they are invalid, that counting an invalid vote, an invalid vote, not a vote that never showed up and got cast because it was difficult logistically for that member of Congress or whatever, or that citizen to get to the polls, but rather [00:18:34] Speaker 05: If, as a matter of constitutional law, the vote itself is a nullity, it's not constitutional for it to be cast, which we are submitting is the case with proxy votes, then counting that vote anyway, that is what creates the dilution and the constitutional injury. [00:19:01] Speaker 05: I don't believe it would be [00:19:04] Speaker 05: And I'll be honest, I hadn't thought through the point the court is making completely, but I don't think it would be hard to draw a line between votes that are, as a constitutional matter, or a legal matter, illegal, and votes that are simply difficult. [00:19:27] Speaker 05: And in our case, and the only case before you, is that [00:19:32] Speaker 05: the counting invalid proxy votes dilutes the votes of all the valid votes, all of them that are cast. [00:19:42] Speaker 05: And that creates the injury recognized by this court in Michael. [00:19:47] Speaker 01: And I don't think I understand why invalidity. [00:19:51] Speaker 01: I'm not necessarily saying that this means your standing theory is wrong. [00:19:54] Speaker 01: I'm just trying to understand the implications of it. [00:19:57] Speaker 01: I'm not understanding why invalidity of a vote gives rise to a different injury in kind. [00:20:03] Speaker 01: than any time it's easier for someone else to vote. [00:20:06] Speaker 01: Because the injury comes from the fact, as I understand it, the injury comes from the fact that the legislator who's bringing the claim would have gotten a result on the vote, but for the fact that somebody else cast a vote that ended up annulling the, like happened in Cooper. [00:20:23] Speaker 01: It's that kind of injury that we would have won, except that somebody else got to vote who shouldn't have gotten to vote or who cast an invalid vote or whatever it is, [00:20:31] Speaker 01: But because they got to vote. [00:20:33] Speaker 01: The result that I wanted did not come to pass that and that's the theory of injury, as I understand it, and that would encompass. [00:20:40] Speaker 01: That's not the theory of injury. [00:20:41] Speaker 05: No, no, you're okay that that that that is an injury. [00:20:45] Speaker 05: That's the ultimate injury. [00:20:47] Speaker 05: Yes. [00:20:47] Speaker 05: From the counting of an invalid vote. [00:20:50] Speaker 05: Or from the non counting, if you will, of a vote they just couldn't get to the poll, if you will. [00:20:56] Speaker 05: That's the ultimate injury. [00:20:58] Speaker 05: But, Your Honor, the injury that is before you now is that [00:21:05] Speaker 05: the very casting of a vote dilutes everyone else's vote if that vote is invalid and it doesn't count. [00:21:14] Speaker 05: Even if that invalid vote that was cast and counted was not decisive. [00:21:22] Speaker 05: Now, there've been many decisive proxy votes in the House thus far. [00:21:27] Speaker 05: Decisive, not in the context of yielding an actual [00:21:31] Speaker 05: law yet, but decisive in many other respects, including how the House organizes itself and the kind of powers and responsibilities that individual members have. [00:21:44] Speaker 05: But Your Honor, we would say that the injury, and the injury we believe this court in Michael and before it in [00:21:53] Speaker 05: Vanderjie recognized is the injury that flows just from the casting and counting of an invalid vote. [00:22:01] Speaker 05: And I think that this court's decision in Skaggs against Carl actually acknowledges that is the injury, regardless of whether the vote itself was decisive. [00:22:11] Speaker 05: Now, it's certainly true, and I'll subside in the hope that I have a little rebuttal time. [00:22:21] Speaker 01: We'll give you a little rebuttal time. [00:22:22] Speaker 05: Thank you. [00:22:24] Speaker 05: Well, in that case, Your Honor, I think I've completed my point. [00:22:31] Speaker 03: I do want to, please, Judge Rogers. [00:22:34] Speaker 04: One sort of basic question. [00:22:37] Speaker 04: The theory here, as I understand it, is basically a geographical notion that because in history you had to be on the floor as a duly elected member, [00:22:55] Speaker 04: in order to cast the vote. [00:22:57] Speaker 04: Any change as to that geographical aspect is necessarily, I'm trying to put your words, not mine, a vote that cannot be counted. [00:23:15] Speaker 04: And you cite a number of authorities. [00:23:20] Speaker 04: I'm wondering though, over history, [00:23:23] Speaker 04: you know, originally everybody had to ride a horse. [00:23:27] Speaker 04: Um, so only certain people who had a horse could get there, um, and snow or whatever might prevent that person from arriving. [00:23:40] Speaker 04: Then we got airplanes, we got trains. [00:23:43] Speaker 04: So a lot more people were able to get there. [00:23:46] Speaker 04: Then at the time of the founding, [00:23:51] Speaker 04: I'm wondering about this notion of 203 years. [00:23:56] Speaker 04: What the framers had in mind in terms of making certain that voters were duly represented in the halls of Congress? [00:24:13] Speaker 04: And your answer seems to be only if their feet are on the soil. [00:24:20] Speaker 04: of the floor of one of the houses? [00:24:24] Speaker 05: Yes, Your Honor. [00:24:27] Speaker 05: We think there's two very important [00:24:31] Speaker 05: supports for our argument that actual presence in the House or Senate chamber is necessary for an individual member to be counted towards a quorum or to cast a recorded vote. [00:24:50] Speaker 05: One is the language of the Constitution itself. [00:24:52] Speaker 05: And yes, it was written at a time when [00:24:58] Speaker 05: It was much, much more difficult, of course, to attend the sessions, but nonetheless. [00:25:07] Speaker 05: But it was a time when proxy voting was well known and was practiced in legislatures before the framing of the Constitution. [00:25:16] Speaker 05: But nonetheless, the framers [00:25:22] Speaker 05: in one passage after another, from Article 1, as we say, to the 23rd Amendment, used words that make just to polusively clear that actual presence was required for these purposes, Your Honor. [00:25:38] Speaker 05: And our point about history is simply that unbroken history for 230 plus years [00:25:47] Speaker 05: The House has, up until recently, and the Senate even still, has obeyed the clear, what we would submit to you, Judge Rogers, is command of the Constitutional provisions that actual presence is necessary to cast a valid vote or to be counted [00:26:11] Speaker 05: towards the quorum. [00:26:14] Speaker 05: And yes, it is geographical in a sense, as you're suggesting. [00:26:20] Speaker 05: It's geographical in that, yes, the individual member has to be present. [00:26:26] Speaker 05: That's why in the history of this Congress, we've had members even essentially on their deathbeds rolled into the chamber in order to cast a vote. [00:26:38] Speaker 04: Yes, I thought of that too. [00:26:41] Speaker 04: But I'm trying to understand the word presence and what exactly that means, because again, as the chief judge, [00:26:54] Speaker 04: points out getting a little into the merits here. [00:26:57] Speaker 04: The quorum requirement and the fact that there is a quorum at 12 noon doesn't mean there has to be an actual quorum physical presence at 3 p.m. [00:27:17] Speaker 04: when the vote is taken. [00:27:18] Speaker 04: That's the way [00:27:21] Speaker 04: the chambers have operated under their rules. [00:27:25] Speaker 04: And the fact that proxy voting existed and the Congress, the House chose not to use it doesn't necessarily decide the question. [00:27:37] Speaker 04: That's what I'm trying to understand. [00:27:39] Speaker 04: You know, they use pen and quills. [00:27:41] Speaker 04: Well, we don't use that anymore. [00:27:44] Speaker 04: So there is some movement here. [00:27:47] Speaker 04: And I want to understand this physical presence as geography, because it's, as they say, boots on the ground is what you're saying the founders required. [00:28:04] Speaker 05: Yes, Your Honor. [00:28:05] Speaker 05: And to address the point about a quorum, the, I think, historical [00:28:11] Speaker 05: judgment from the Federalist Papers concerning why they chose to set it at a majority is further supportive of the proposition that actual boots on the ground, Judge Rogers, as you phrase it, was the understanding, the command of the Constitution. [00:28:35] Speaker 05: There was a debate over what the quorum requirement should be, and a majority was viewed as one that best balanced the realities of the distance and the relative difficulties that individual members of the body would have to negotiate in order to be present. [00:28:58] Speaker 05: and not be absent so that they could be counted towards a quorum further with respect to the quorum point. [00:29:05] Speaker 05: Yes, Your Honor, it is true that if a quorum is established at noon on a legislative day, it must be established first. [00:29:23] Speaker 05: by actual presence. [00:29:24] Speaker 05: There's simply no debate or dispute among the parties on that. [00:29:29] Speaker 05: And anytime any member suggests the absence of a quorum, it must be, again, established by actual presence. [00:29:38] Speaker 05: But it is true that once it is established, a presumption attaches [00:29:43] Speaker 05: And the quorum is presumed to persist until such time as any member suggests to the contrary and requires that the actual presence of a quorum, as the framing goes, has to be once again demonstrated. [00:30:05] Speaker 05: But Your Honor, we would simply note that the practice of unanimous consent [00:30:13] Speaker 05: is one that is common to legislatures long before it was adopted by the bodies of our Congress as a necessary presumption and a method by which legislative bodies can proceed without constantly, constantly [00:30:40] Speaker 05: counting noses to determine and to establish and to prove that yes, a quorum continues to exist. [00:30:49] Speaker 04: So under your theory, and I won't persist, but just under your theory, if you view COVID as a plague, Congress could not operate? [00:31:04] Speaker 05: Your Honor, no. [00:31:08] Speaker 05: We believe that Congress has operated throughout history, even in the presence of plagues that are worse by orders of magnitude, at least as we speak, than the coronavirus crisis. [00:31:25] Speaker 04: Take my hypothetical. [00:31:29] Speaker 04: I'm just trying to push you here so I know how far your theory goes. [00:31:33] Speaker 04: There is a plague. [00:31:36] Speaker 04: And no one can convene in a geographic sense that under the constitutional system, as I understand your argument, Congress simply could not function. [00:31:52] Speaker 04: Because no one geographically could get to the floor of the House. [00:32:02] Speaker 05: Your Honor, that [00:32:06] Speaker 05: That scenario, that hypothetical, Your Honor, I believe would result in Congress having to find some way to gather in person, as it has in every crisis that it has faced throughout American history. [00:32:28] Speaker 04: My hypothetical is we have a new crisis. [00:32:31] Speaker 04: We haven't ever experienced this in the past. [00:32:35] Speaker 04: And there really isn't any disagreement in my hypothetical that the plague is such that the House and Senate have to shut down under your theory. [00:32:50] Speaker 04: I just want to understand under my hypothetical. [00:32:53] Speaker 04: And you're saying COVID is not such a situation. [00:32:57] Speaker 04: And I'll take that as a hypothetical. [00:33:04] Speaker 04: Is that the result of your theory here? [00:33:09] Speaker 05: Your honor, I have to give you the same answer that Jefferson, Hamilton, and Madison gave to Washington in 1797 in the Yellow Fever Plague. [00:33:23] Speaker 05: And it was that, in Jefferson's words, even if the Congress has to meet in Philadelphia, the seat of government, in a field for one day before it [00:33:35] Speaker 05: before it moves its place of convening to a safer location, then that's what it must do. [00:33:44] Speaker 04: Of course, these words have to be taken in context. [00:33:50] Speaker 04: They didn't have to assume and other things at that point. [00:33:55] Speaker 04: I won't belabor this. [00:33:56] Speaker 04: Judge Walker has some questions. [00:33:59] Speaker 03: Well, before my questions, I do want to follow up on if I can [00:34:05] Speaker 03: Try to give the answer to Judge Rogers' hypothetical. [00:34:08] Speaker 03: Assume that if anyone leaves their house, they will die. [00:34:14] Speaker 03: Assume that's the hypothetical. [00:34:16] Speaker 03: My question is, does that mean that Congress simply cannot meet, according to your theory? [00:34:24] Speaker 05: According to my theory, Your Honor, I believe that the Constitution will have to be amended to permit them to meet. [00:34:33] Speaker 03: And the Constitution can't be amended unless two houses of Congress support the amendment with the supermajority. [00:34:39] Speaker 03: And if they can't meet, they can't do that, right? [00:34:42] Speaker 05: And that may be a very good reason for Congress and the country to consider such an amendment in a time when it can take place. [00:34:54] Speaker 03: Fair enough. [00:34:57] Speaker 03: One last question on the merits before I want to go back to standing. [00:35:02] Speaker 03: The Supreme Court recently said in its wayfair decision that one may be present in a meaningful way without that presence being physical in the traditional sense of the term. [00:35:19] Speaker 03: What do you think about that? [00:35:23] Speaker 05: Your Honor, I think that statement was made in a very different context. [00:35:27] Speaker 05: It was made in the context of corporate presence, the presence of a corporation, and in particular, a retail corporation that has retail sales, even if it doesn't have an individual or an office present in a particular location. [00:35:48] Speaker 05: And a corporation can have many different [00:35:52] Speaker 05: places of presence. [00:35:54] Speaker 05: It can even have, and the court has struggled with how to identify a single place where a corporation is presence, I think, ultimately settling on the center of gravity rule. [00:36:09] Speaker 03: But a person- Mr. Kirk and Mr. Cooper, let me interrupt if I may. [00:36:15] Speaker 03: Do you think that I'm present for this oral argument? [00:36:20] Speaker 05: Your Honor, I think, yes, I think you're present in the sense that we are interfacing together through this medium. [00:36:36] Speaker 05: But, Your Honor, if your law clerk were sitting in your chair and were asking me questions by your proxy, you would not be present. [00:36:48] Speaker 03: So you'd be fine with a House rule that allows voting by Zoom, correct? [00:36:54] Speaker 05: Your Honor, I think that would fall under my same argument. [00:37:01] Speaker 05: It would be a different case. [00:37:03] Speaker 05: It would be a different case. [00:37:05] Speaker 05: There's no way to say that you're present if what's present is your proxy. [00:37:12] Speaker 03: And I wasn't even going to ask about merits, but Judge Rogers got me all interested. [00:37:18] Speaker 03: So if I could ask one or two quick standing questions, and then I'll get out of the way here. [00:37:25] Speaker 03: You don't represent the House of Congress. [00:37:27] Speaker 03: You don't represent even an entire committee of Congress. [00:37:32] Speaker 03: Your clients are, I believe, all members of Congress from one political party. [00:37:44] Speaker 03: I guess it seems to me that this is yet another case where one group of politicians are sparring with another group of politicians and they want a federal court to pick a side. [00:38:04] Speaker 03: Whether we view this under standing jurisprudence, political question jurisprudence, speech and debate jurisprudence, [00:38:13] Speaker 03: the principle behind those doctrines is that this court, no court is supposed to be an instrument of partisan warfare. [00:38:24] Speaker 03: Tell me why I shouldn't view this case as a group of Republican representatives trying to get their way in Congress against a group of Democratic representatives. [00:38:39] Speaker 05: Your honor, to put this in the context of standing, [00:38:44] Speaker 05: I think you're bound by the Michael case. [00:38:49] Speaker 05: And that case, just as surely, had its partisan element to it, in which the territorial representatives were allowed to vote in the Committee of the Whole. [00:39:02] Speaker 05: It was the partisan objection. [00:39:06] Speaker 03: I understand, Michael. [00:39:10] Speaker 03: Would I be interpreting your answer correctly if I interpreted you to be saying, Michael says it's okay for one segment of politicians to use a federal court as an instrument of partisan warfare against another group of politicians? [00:39:27] Speaker 05: No, Your Honor. [00:39:28] Speaker 05: That is not any way close. [00:39:31] Speaker 03: I don't think that's what Michael says either. [00:39:33] Speaker 05: So I'm wondering how... And I don't want my arguments framed. [00:39:37] Speaker 03: How is that what's not going on here? [00:39:39] Speaker 05: Well, Your Honor, what's going on here is one set of members of Congress are saying that they're being injured by a different set of members of Congress in terms of the actual value of their vote being compromised. [00:39:58] Speaker 05: And Your Honor, whether that breaks down, if I'm right and that is happening, [00:40:05] Speaker 05: whether that has broken down on a partisan basis, as one would probably expect that it might, should not stay the court's hand from, if we have standing, if the case is not barred by speech and debate, should not stay the court's hand from according [00:40:33] Speaker 05: from taking it up and according a remedy. [00:40:36] Speaker 05: This court. [00:40:37] Speaker 03: Very good, very good, Mr. Cooper. [00:40:39] Speaker 03: And that assumes that Michael survives, reigns. [00:40:44] Speaker 03: And that question is well briefed by both sides. [00:40:48] Speaker 03: One last standing question. [00:40:49] Speaker 03: One of your clients is a constituent named, I think his name is Mr. Swayze. [00:40:56] Speaker 03: He's in a congressional district whose member of Congress did vote by proxy. [00:41:02] Speaker 03: So why does he have standing? [00:41:05] Speaker 03: How has he been injured by this rule? [00:41:07] Speaker 05: Your honor, our theory there is he's been injured because his representation in Congress has been sub-delegated. [00:41:17] Speaker 05: Our point is that Mr. Swayze and the other citizens, voters in that district, have delegated their power through the representative that they elected [00:41:32] Speaker 05: to express their voice in the halls of the House of Representatives. [00:41:38] Speaker 03: So then, Mr. Cooper, that means that everyone, every constituent in every district in the country has been injured, which now it starts to look a lot like a taxpayer standing case, which means no standing. [00:41:51] Speaker 05: Your Honor, I want to call the Court's attention to the Michael decision again, where the Court addressed [00:42:00] Speaker 05: the widespread nature of the injury that was before it, the claimed injury before it from dilution of the voting power of members of Congress. [00:42:16] Speaker 05: It attached to every member of Congress and therefore it attached to all their constituents. [00:42:24] Speaker 03: Very good, very good. [00:42:26] Speaker 03: Thank you very much. [00:42:28] Speaker 01: Thank you, Mr. Cooper. [00:42:29] Speaker 01: Unless my colleagues have further questions, we'll hear from Mr. Letterman. [00:42:33] Speaker 01: We'll give you some time for rebuttal. [00:42:35] Speaker 05: Thank you, Mr. Chief Judge. [00:42:38] Speaker 01: Mr. Letter. [00:42:38] Speaker 02: Thank you, Your Honor. [00:42:40] Speaker 02: May it please the court and Douglas Letter, the General Counsel of the United States House of Representatives. [00:42:46] Speaker 02: Before I start, please just give me a moment to say that it is such an honor and pleasure to appear in court with my friend, Mr. Cooper, with whom I've been friendly for several decades. [00:42:59] Speaker 02: Your honors, I had a lovely stirring introduction, which I'm going to pass because I want to jump right in and answer the questions that you have asked. [00:43:08] Speaker 02: If you want later, I can email you that wonderful introduction. [00:43:13] Speaker 02: The first point right off is to get to some of the questions from the chief judge. [00:43:20] Speaker 02: First, remember, Rangel has a very key quote. [00:43:28] Speaker 02: There, this court said, Congress's execution of internal rules is legislative. [00:43:36] Speaker 02: And so, as you know, and as the decision in Walker focuses on, [00:43:47] Speaker 02: Is, is it an act legislative and is as the discord had said any number of times, it doesn't matter who the actor is it's the act. [00:43:57] Speaker 02: And so the Walker decision says quite a few things is as my friend Mr Cooper has mentioned, but just above even the point that the [00:44:06] Speaker 02: that the chief judge quoted. [00:44:09] Speaker 02: At some point, the court said, consumer union held that arrangements for seating the press in the House and Senate galleries were integral to the legislative machinery, and thus were immune from judicial review by virtue of the speech or debate clause. [00:44:26] Speaker 02: So here, as Judge Contreras found, it's harder to think of something that is more integral [00:44:34] Speaker 02: to the legislative machinery than the act of voting. [00:44:39] Speaker 02: And remember, that's what this case is about. [00:44:42] Speaker 02: Congress, the House has made a rule, an internal rule, about how members can vote. [00:44:50] Speaker 02: And so again, as Judge Contreras found, this is as close to the legislative process as you can get. [00:45:04] Speaker 02: Mr. Cooper says that consumer's union is not directly on point here because it did delve into other rationales. [00:45:15] Speaker 02: And it's, again, the chief judges question that. [00:45:19] Speaker 02: And I just wanted to note at page 1348, this court said, [00:45:29] Speaker 02: that it was looking at whether constitutional rights and therefore a question proper for judicial consideration necessarily is presented. [00:45:40] Speaker 02: We need not pause to consider such a formulation in the abstract, but turn to the effect of this feature debate clause to settle whether despite the claim of constitutional violation, [00:45:52] Speaker 02: tenuous as we have noted or otherwise, this case is yet not justiciable. [00:45:58] Speaker 02: So I think that that makes clear that that is holding of Consumers Union and that was indeed picked up then in the later decisions such as Wrangel. [00:46:12] Speaker 01: So can I ask you, Mr. Lutter, what's your, what do you do with Powell versus McCormick? [00:46:18] Speaker 02: Yes, your honor. [00:46:19] Speaker 02: So obviously in some of these cases, it is it is difficult to draw the line. [00:46:25] Speaker 02: But in Powell, the Supreme Court drew the line at the they're the, as I recall, the doorkeeper and maybe the sergeant in arms. [00:46:35] Speaker 02: It said they can be sued. [00:46:37] Speaker 02: Under the circumstances there where, remember, the House had said they were not going to seat Representative Powell. [00:46:47] Speaker 02: So he was not allowed to vote or participate or receive a salary in any way. [00:46:53] Speaker 02: And under those circumstances where he had been kicked out of Congress, that then was considered close enough that [00:47:04] Speaker 02: speech or debate did not bar a suit against those officers. [00:47:08] Speaker 03: Does it come out differently if they let Powell do everything a member of Congress does except they just don't count his vote? [00:47:18] Speaker 02: So you mean you have a situation where Congress decides that the House decides it is not going to count any specific representative's vote? [00:47:29] Speaker 02: That very well might [00:47:30] Speaker 02: come out differently, the situation, it would be an individual, a situation of individual discrimination against an individual. [00:47:41] Speaker 03: It's possible, but obviously- Really, Mr. Latter, is that really the position of your clients that the majority of the House could single out a single member of the House and say, we will pay you, we will listen to you, we will let you have an office and the staff will let you walk around and come on the House floor, but we will not count your vote. [00:48:00] Speaker 03: And you have no way, you have no remedy in a court. [00:48:04] Speaker 02: Well, again, if Powell is controlling, then the Natsu would be cognizable. [00:48:10] Speaker 02: However, remember that the speech or debate clause was inserted into the Constitution by the framers. [00:48:18] Speaker 03: Mr. Letter, I wanted to give you a chance to say what you were about to say. [00:48:22] Speaker 03: But first, if you could give me the answer to my question, it's not the same facts as Powell under the facts I gave you. [00:48:29] Speaker 03: would, would the new pal, the new representative pal be able to get a remedy from a court? [00:48:38] Speaker 02: And you know, Your Honor, the first words out of my mouth in response are going to be, that's not this case. [00:48:43] Speaker 02: The, if there is individualized discrimination against [00:48:49] Speaker 02: particular members of Congress that would pose a very difficult case and a very different case. [00:48:55] Speaker 02: However, as I was starting to point out, remember that speech or debate is absolute. [00:49:04] Speaker 02: So for example, this court, the judges on this court have absolute immunity. [00:49:11] Speaker 02: It doesn't matter if I say, but you discriminated against me [00:49:16] Speaker 02: on the basis of my race. [00:49:18] Speaker 02: That is my claim. [00:49:19] Speaker 02: I am, that is exactly my claim. [00:49:23] Speaker 02: And you all can say that sounds good and you may even be right, but we are absolutely immune. [00:49:31] Speaker 03: So I take that. [00:49:32] Speaker 03: And if I'm understanding your answer and my hypothetical [00:49:37] Speaker 03: would be a different case, of course. [00:49:39] Speaker 03: And you're not taking a firm yes or no on whether or not a court could decide that case. [00:49:46] Speaker 03: But I think I hear you saying a court probably could not provide a remedy to the pal in my hypothetical. [00:49:54] Speaker 02: Except the remedy, remember, there would be very likely a remedy for a plaintiff who came forward who was affected by a law if there were a law passed [00:50:07] Speaker 02: and individual members of Congress were discriminated against, then very likely people who were affected by that law, they could sue and they wouldn't sue the members of Congress. [00:50:19] Speaker 02: Remember, they would then be suing the executive branch, which would be carrying out the law. [00:50:24] Speaker 02: So there is a remedy. [00:50:26] Speaker 02: Okay. [00:50:26] Speaker 01: Your honor, even with the individual who brings a suit, if it's a speed, that's true for standing. [00:50:31] Speaker 01: That's always a way around, potentially around standing, because that's what happened with Reince and Clinton and Clinton versus New York. [00:50:37] Speaker 01: But does that work for speech or debate purposes? [00:50:41] Speaker 01: Because if the individual is suing, the individual action would be brought against who? [00:50:47] Speaker 02: The sergeant at arms? [00:50:52] Speaker 02: The hypothetical that I was posing, Your Honor, is Congress, let's say the House says, we're not going to count any votes by women. [00:51:01] Speaker 02: Women shouldn't be here. [00:51:02] Speaker 02: We're not going to count their votes. [00:51:03] Speaker 02: And then the House passes a statute, passes a law. [00:51:07] Speaker 02: It comes into law. [00:51:08] Speaker 02: Somebody who is then affected by that statute could say that statute was unconstitutionally passed and they would presumably be suing the executive branch, which would be enforcing the statute against them. [00:51:22] Speaker 02: So that was the remedy that I was posing. [00:51:28] Speaker 01: Okay, so then can I just go back to Powell for a second? [00:51:30] Speaker 01: So then if we assume that the answer to Powell, the hypo that Judge Walker posed to you, if we assume that the answer to that is no, speech or debate is absolute as you described it, and therefore in a situation in which the remaining members of the House decided that Powell was not gonna be able to vote, but he could sit, [00:51:50] Speaker 01: And then you can't bring that action because speech or debate would prevent a remedy there. [00:51:57] Speaker 01: Then what's the difference between what, because Powell did allow the suit. [00:52:02] Speaker 01: So the difference is that you can't be excluded altogether, but you can be excluded from voting for speech or debate purposes. [00:52:08] Speaker 01: And if you're excluded altogether, there's no speech or debate problem if you're excluded from voting that there is. [00:52:14] Speaker 01: What's? [00:52:16] Speaker 02: What I was saying in Powell, [00:52:19] Speaker 02: The Supreme Court obviously believed that the combination of circumstances made it so that it drew a fine line. [00:52:27] Speaker 02: And it said under those circumstances where the member is being excluded and not paid, remember that was a key part of the decision, and not paid, that person can sue. [00:52:38] Speaker 02: This case, and so if the facts of that case change, would the Supreme Court come out differently? [00:52:45] Speaker 02: I don't know the answer to that. [00:52:47] Speaker 01: Here's what Gravel says about Powell. [00:52:52] Speaker 01: Powell versus McCormick reasserted judicial power to determine the validity of legislative actions impinging on individual rights. [00:53:01] Speaker 01: And it seems like one thing that Gravel was doing is it's taking the three cases that have been discussed in the briefing, Powell and [00:53:08] Speaker 01: Dembrowski and Kilbourne. [00:53:10] Speaker 01: And at least in some measure, there's a lot going on in gravel, but at least in some measure, there's a reference made to impingement on individual rights, usually third parties, Powell's a little different because it's hard to call Powell a complete third party. [00:53:23] Speaker 01: But what was at stake was individual rights and according to the Supreme Court. [00:53:29] Speaker 01: And so is the theory behind [00:53:31] Speaker 01: The potential distinction between exclusion altogether and exclusion as to voting that insofar as it excluded altogether that impinges on individual rights insofar as it excluded where you're included but you're excluded for purposes of voting, then it transfers the case from one about individual rights to one about rights as a legislator. [00:53:52] Speaker 01: I'm just looking for some theory that helps draw the distinction as opposed to the factual distinction. [00:53:58] Speaker 02: Right, Your Honor. [00:53:58] Speaker 02: And so that would be a potential theory. [00:54:01] Speaker 02: It may very well be, as the Supreme Court said in Gravel, my memory is saying that's a potential theory. [00:54:08] Speaker 02: point, and that is. [00:54:10] Speaker 02: And so there would be, if under those circumstances the House chose to assert speech or debate, obviously it would be a very difficult case to determine. [00:54:21] Speaker 02: This case, again, there's no discrimination against anybody. [00:54:26] Speaker 02: Remember that this method of voting has been made available to all members of the House. [00:54:34] Speaker 02: So wherever we draw the line, [00:54:38] Speaker 02: This case is nowhere close to it, because it is quite different, since there is no individualized discrimination. [00:54:48] Speaker 01: Can I take you to standing for a second, unless I don't want to move off speech or debate too quickly? [00:54:53] Speaker 01: Yes. [00:54:53] Speaker 01: My colleagues have questions on that. [00:54:55] Speaker 01: Let me take you to standing for just one second. [00:54:56] Speaker 01: So let's assume, I know you'll resist the assumption, but I'm just asking you to assume it. [00:55:02] Speaker 01: Assume that we think Michael is still good post-Reins. [00:55:06] Speaker 01: And I know you've got your argument that says Michael should be rethought after rains, but let's assume that Michael's still good. [00:55:13] Speaker 01: If the rule in Michael were that not only did the representatives of the territories, not only are they allowed to vote, but in order for them to vote, they have to vote by proxy. [00:55:32] Speaker 01: And then somebody, another legislator challenges [00:55:37] Speaker 01: the ability of them to vote in the way that Michael came about. [00:55:44] Speaker 01: Then under your standing theory, would it be that insofar as they're challenging the ability of the territorial representatives to vote altogether, they're standing. [00:55:54] Speaker 01: Insofar as they're challenging their ability to vote by proxy, there's no standing. [00:56:02] Speaker 02: So the first answer on Michael, and I hope I'm responding to your question is, Michael is obviously different because Michael adds more people to the denominator. [00:56:16] Speaker 02: It says people who we say cannot vote, they get added. [00:56:22] Speaker 01: Right, but I'm saying that they can vote, but they have to vote by proxy. [00:56:27] Speaker 02: Right, so then that makes it quite different, your honor, because then you're talking about, is this court going to review rules set by Congress on how to vote? [00:56:43] Speaker 02: Now, it still might be a question of there might be standing there if there is individualized discrimination against some members. [00:56:53] Speaker 02: And as you know, the footnote in Reins leaves that open. [00:56:58] Speaker 02: And so it may very well be that that would be enough to bring standing. [00:57:03] Speaker 02: So if Michael is still good law, if you start adding people to the voters, Michael would mean that there is standing for that. [00:57:13] Speaker 01: If you individually discriminate, Reign says that might allow- I'm trying to tease out the following point to me, which seems [00:57:27] Speaker 01: which seems like a question raised by your standing theory, which is that I know you've got this denominator notion that if you add to the denominator, then they're standing. [00:57:37] Speaker 01: But if the denominator stays the same, then there's not standing because the people who are complaining still got their one 435th. [00:57:44] Speaker 01: But in a case in which somebody's not supposed to vote, but then they're allowed to vote by proxy, it seems to bring both of those together. [00:57:55] Speaker 01: Because the person who's complaining, they're just saying, look, [00:57:58] Speaker 01: That other person shouldn't have gotten to vote. [00:58:00] Speaker 01: They shouldn't have gotten to cast this vote. [00:58:01] Speaker 01: And you could say it in one or two ways. [00:58:03] Speaker 01: You could say A, they shouldn't have been allowed to cast a vote at all because they're ineligible to vote. [00:58:08] Speaker 01: And then you could say B, well, regardless of whether they were eligible or not, they cast an invalid vote. [00:58:13] Speaker 01: Still, that vote shouldn't be counted. [00:58:16] Speaker 01: And it seems to me your standing theory tries to draw a talismanic distinction between those two modes of argument. [00:58:21] Speaker 01: And I'm not sure I understand the talismaning distinction when you're talking about injury because the person who's complaining about the vote is still being injured in the same way that somebody else whose vote shouldn't have counted got to be counted. [00:58:34] Speaker 02: Your honor, I think a more appropriate way to look at it when I say more appropriate, I mean, under the case law is you don't have standing to challenge how [00:58:45] Speaker 02: somebody else who can vote does vote. [00:58:48] Speaker 02: For example, suppose there were, and I think this is this hypothetical is directly on point and it ties in with one of the questions that either you or one of the other judges asked. [00:58:58] Speaker 02: Suppose the election board in a state says there is a blizzard coming, so we're going to open the polls an hour earlier and keep them open an hour later. [00:59:12] Speaker 02: Under Mr. Cooper's theory, and I believe I heard him indicate this, he would say, well, but that vote under the prior rule would not have been valid. [00:59:22] Speaker 02: If you vote an hour after the polls close, your vote doesn't count. [00:59:27] Speaker 02: But the board of election says, we're going to keep open an hour later. [00:59:31] Speaker 02: Could anybody sue? [00:59:33] Speaker 02: Would anybody have standing to say, I'm planning to vote in the middle of the day. [00:59:37] Speaker 02: How dare you? [00:59:40] Speaker 02: make the polls open an hour longer so that registered voters have it's easier for them to vote. [00:59:47] Speaker 02: If the old rule applied, their vote would be invalid. [00:59:51] Speaker 02: Well, nobody would think that they're standing in that circumstance. [00:59:55] Speaker 02: So it's not a question of like in Michael, where you're saying, we're going to take some people who under your claim are not eligible to vote. [01:00:06] Speaker 02: They can't vote whether they vote by proxy or by time, whenever. [01:00:10] Speaker 02: That's quite different from simply saying, we're going to make it easier. [01:00:17] Speaker 02: We're gonna make the democratic process easier for people to vote, people who were otherwise completely eligible to vote. [01:00:25] Speaker 02: So I think that's a very clear distinction. [01:00:29] Speaker 01: I understand the distinction. [01:00:30] Speaker 01: I guess it's not immediately apparent to me [01:00:34] Speaker 01: how much work that distinction does vis-a-vis the person who's injured. [01:00:38] Speaker 01: Because it just seems to me they're injured in what could be described as the same way, which is that their affirmative vote isn't getting the same mileage because some other vote was counted that shouldn't have been. [01:00:51] Speaker 02: Well, let me try it this way. [01:00:55] Speaker 01: I'm sorry. [01:00:56] Speaker 02: I'm sorry. [01:00:56] Speaker 01: No, that's all right. [01:00:57] Speaker 01: You go. [01:00:57] Speaker 01: You go. [01:00:59] Speaker 02: Let's put it this way. [01:01:01] Speaker 02: We don't believe that they are injured. [01:01:04] Speaker 02: And again, I think that the case law supports this because this opportunity is open to everybody, all the eligible voters. [01:01:13] Speaker 02: We're saying, okay, everybody who is eligible to vote, we're not making more people eligible. [01:01:18] Speaker 02: We're not doing that. [01:01:20] Speaker 02: We're giving you an additional opportunity or ability to exercise your vote. [01:01:28] Speaker 02: That's very different. [01:01:30] Speaker 02: And I don't think, and I'm fairly sure. [01:01:32] Speaker 01: It just seems like it's semantic because in some ways you are making more people eligible to vote because a predicate to casting a proxy vote is that the person has to say that they couldn't have been there, right? [01:01:44] Speaker 02: And so- They're unable to vote. [01:01:46] Speaker 02: Now, remember, your honor, the person could say, this is a really important vote coming up. [01:01:56] Speaker 02: If I travel to Washington and go on to a crowded house floor, I might get sick and I might die, but I'm going to do it because you've left me no choice. [01:02:07] Speaker 02: Now, I think that person is unable to vote in the way that we in the house, we understand the proxy voting. [01:02:16] Speaker 02: So you could say, yes, fine. [01:02:19] Speaker 02: If there's no proxy voting, remote voting, I'll get there and you watch me die. [01:02:26] Speaker 02: Does that mean that then changes things? [01:02:33] Speaker 02: So if what you're saying is what I think Mr. Cooper's clients are saying is we insist, and the framers insisted that everybody can only vote in one way, and that is even if it makes them vulnerable to death from a raging pandemic, that's it. [01:02:54] Speaker 02: That's what the framers meant. [01:02:56] Speaker 02: In addition, if I could add one more point, Your Honor, I know you didn't ask specifically about this, but I think it ties in very well. [01:03:02] Speaker 02: Remember, what we're arguing is Michael is distinguishable. [01:03:06] Speaker 02: And I know your hypothetical said, OK, suppose that Michael was not overturned by Reigns. [01:03:12] Speaker 02: But remember, what Mr. Cooper is doing here is he is asking you to extend Michael to a different situation. [01:03:20] Speaker 02: And even if Reigns did not expressly overrule Michael, [01:03:26] Speaker 02: Surely it would be very strange for this court after Reigns to extend Michael to a new factual situation. [01:03:37] Speaker 01: You see if my colleagues have any further questions for you, Mr. Leiter. [01:03:41] Speaker 01: OK, thank you, Mr. Leiter. [01:03:43] Speaker 01: I think we have your submission. [01:03:45] Speaker 01: If you have something else you want to say in closing, you're welcome to. [01:03:48] Speaker 01: Otherwise, we'll let Mr. Cooper have his rebuttal. [01:03:50] Speaker 02: Would you give me one second to just very quickly scan my notes, because I did jot down [01:03:55] Speaker 02: several things I was going to say. [01:03:59] Speaker 02: Oh, do you mind, Your Honor? [01:04:00] Speaker 02: The one thing I wanted to do was the questions about... Well, no, I guess nevermind. [01:04:09] Speaker 02: Your Honor, I'm sorry, I rest. [01:04:11] Speaker 01: Okay. [01:04:12] Speaker 01: Okay. [01:04:13] Speaker 01: Thank you, Mr. Latter. [01:04:14] Speaker 01: Mr. Cooper, we'll give you your, I think it was three minutes of rebuttal. [01:04:17] Speaker 03: Thank you very much, Your Honor. [01:04:19] Speaker 03: Mr. Cooper, could I ask you to start and then there'll be time for you to go from there, but assume that Michael was overruled by Reigns. [01:04:28] Speaker 03: What's your best argument for standing in that case? [01:04:32] Speaker 03: Assume I think it was overruled. [01:04:33] Speaker 03: How can I still rule for you on the standing question? [01:04:38] Speaker 05: If it was overruled, [01:04:40] Speaker 05: by Reins, despite this court's many, many statements to the contrary, including Judge Rogers' recent opinion for the in-bank court in McGann. [01:04:55] Speaker 05: Your honor, I would simply argue to you that the dilution, I would argue Reynolds against Sims, your honor. [01:05:06] Speaker 05: I'd argue Westbury against Sanders. [01:05:09] Speaker 05: I'd argue the census cases. [01:05:12] Speaker 05: Any time a valid vote [01:05:15] Speaker 05: is cast and is essentially canceled out by an invalid vote, there has been an injury in fact. [01:05:24] Speaker 05: And Your Honor, that is mathematically inescapable. [01:05:33] Speaker 05: And so that would be my argument to Your Honor. [01:05:35] Speaker 05: I'm not sure I'd have a case other than the classic dilution cases to offer you. [01:05:42] Speaker 05: Certainly, if Reigns is overruled, Michael, my job is a whole lot harder. [01:05:50] Speaker 03: And I don't want you to have to spend your whole rebuttal answering my questions. [01:05:54] Speaker 03: I'm good if the other judges are. [01:05:56] Speaker 05: Let me speak to the Wrangel case mentioned by Mr. Lutter. [01:06:02] Speaker 05: What he's quoting there is a parenthetical after the citation to Consumer's Union. [01:06:07] Speaker 05: And the parenthetical says Congress's execution of internal rules is legislative. [01:06:12] Speaker 05: Well, that parenthetical from Wrangel simply can't be squared with the case that it cites, Consumer Union. [01:06:21] Speaker 05: It is a drive-by comment, and the court can't place a stock in it, even if it could, because Consumer's Union, Your Honor, recognizes this temporal distinction. [01:06:36] Speaker 05: But even if it could, it would be refuted by the Powell case, which also [01:06:41] Speaker 05: was the execution of internal rules, internal rules relating to the discipline of [01:06:53] Speaker 05: of a member of Congress, just as Rangel was. [01:06:57] Speaker 05: Secondly, Judge Walker, you're hypothetical. [01:07:01] Speaker 05: I think I heard my old friend, Mr. Lutter, basically say that, yes, there'd be no standing if Mr. Powell had been stripped of nothing other than his right to vote. [01:07:19] Speaker 05: I think it may have also heard him stand up to the hypothetical that I've offered, an extreme one, I admit, that you have a rule passed where women cannot vote. [01:07:31] Speaker 05: And he makes the point that it's absolute. [01:07:34] Speaker 05: Your Honor, I don't think that [01:07:38] Speaker 05: His points can stand up to that hypothetical. [01:07:41] Speaker 05: And it wouldn't change one bit, Judge Walker, if that decision to strip Mr. Powell of his vote was an act of partisan spite. [01:07:55] Speaker 05: It wouldn't matter. [01:07:56] Speaker 05: I see my three minutes has already fled by, Your Honor. [01:08:02] Speaker 05: So I'll thank the court for its time and attention. [01:08:07] Speaker 01: Thank you. [01:08:07] Speaker 01: Thank you, counsel. [01:08:08] Speaker 01: Thank you to both counsel for your arguments this morning. [01:08:10] Speaker 01: We'll take this case under submission. [01:08:12] Speaker 05: Thank you very much.