Vice Presidential Proxy Voting

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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9 Responses

  1. Brett Bellmore says:

    “no proxy could occur if the VP was in a coma”

    No proxy should occur if the VP was in a coma, but if we’re permitting proxy voting, we’re already in uncharted, and arguably unconstitutional, territory.

  2. Gerard says:

    Why would it be unconstitutional?

  3. dht says:

    I don’t think proxy voting would be unconstitutional, per se. However, since the one constitutionally mandated job of the Vice-President is to preside over the Senate, any absence for other reasons, no matter how important, would certainly raise questions. While it is unlikely to happen in the current environment, it is probably better to amend the constitution to allow proxy (or deny) proxy voting by the Vice-President.

  4. Brett Bellmore says:

    Gerard, because the Constitution gives certain powers to the vice-President, and the proxy, rather conspicuously, ISN’T the vice-President. This doesn’t strike me as an obscure argument.

  5. Gerard Magliocca says:

    But the Senate has the power to decide how it’s voting is done, wouldn’t you agree?

  6. dht says:

    The Vice-President, though constitutionally named as President of the Senate, is not a member of the Senate, and therefore probably not subject to Senate rules.

  7. Stefan Privin says:

    Does Article I, Section 3, Clause 5 suggest that the Vice President must be present in the Senate in order for him to exercise his authority as President of the Senate? If so, then the Vice President could not vote by proxy.

  8. Brett Bellmore says:

    “But the Senate has the power to decide how it’s voting is done, wouldn’t you agree?”

    Only insofar as those decisions don’t contradict the Constitution. Using a proxy isn’t a way somebody votes. It’s substituting somebody else to do the voting.

    I see no obstacle written into the Constitution to a VP phoning in his vote. But he does have to be the one casting the vote.

  9. PrometheeFeu says:

    One could argue that by showing up to cast your vote you demonstrate that you at least cared enough to show up. If you can’t be bothered to show up, maybe you shouldn’t be voting.