A citizen’s right to vote for a member of Congress is fundamental to our democracy. There is even an entire section of the Department of Justice tasked with ensuring that citizens can choose a member of Congress to represent them.

But what if that member of Congress delegates his or her vote to another member of Congress whom voters may not know and certainly didn’t vote for? The voter isn’t being suppressed per se, but he certainly isn’t being represented either.

Yet that is exactly what has been happening in the House of Representatives.

In May 2020, the House passed House Resolution 965, which allows an absent member of Congress to delegate another member to vote on his or her behalf. The present member can represent up to 10 absent members, casting 11 votes (counting his or her own). That’s a lot of power for one member!

And it’s a significant deviation from how our members of Congress have always voted. Rep. Kevin McCarthy is calling on the Supreme Court to decide whether this new situation is constitutional.

To be sure, the Constitution makes it very clear that in-person legislating is sacrosanct. Members of Congress are exempt from civil arrest, a practice that was common at the time of the founding, while Congress is in session so they cannot be prevented from casting a vote. The Speech and Debate Clause grants immunity to members of Congress when engaging in the legislative process so that the members are not distracted from their deliberative and lawmaking duties. And finally, the quorum requirement in the Constitution requires a majority of members present to do business, and the provision even authorizes compelling the attendance of members and providing penalties to those who are not present.

But, despite the Constitution’s unambiguous call for in-person legislating, the House of Representatives has moved to a process whereby only a few members show up and vote, and each member has multiple votes to cast for his or her colleagues. The body is called the House of Representatives, yet many members do not bother to represent their constituents with their vote on legislation, instead allowing others to vote in their stead.

These votes are not insignificant. The Build Back Better Act, one of the largest spending bills in American history, was passed by 98 proxy votes. This bill has been estimated to drive up the national debt by $3 trillion. Yet 98 members of Congress did not show up for the vote and had a friend cast their votes for them. HR 4, a bill that would give partisans at the Justice Department power over each state’s election procedures, passed with 87 members voting by proxy.

These are important bills that have a huge impact on our country, yet over a third of the House of Representatives did not show up for them.

This is not what the founders intended. And it is not what the voters intended either. Voters don’t want members of Congress from some other district voting for them — they voted for their own member and expect that member to represent them. Voter representation is a fundamental part of our representative government. Let’s hope the Supreme Court thinks so too and decides to hear Rep. McCarthy’s case.

J. Christian Adams is the president of the Public Interest Legal Foundation, a former Justice Department attorney, and the commissioner of the United States Commission for Civil Rights.