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Spin Control: Why a judge won’t block a House rule and let unvaccinated lawmakers vote in person

Syringes are filled with 0.5 ml of Moderna vaccine.  (DAN PELLE/THE SPOKESMAN-REVIEW)
Syringes are filled with 0.5 ml of Moderna vaccine. (DAN PELLE/THE SPOKESMAN-REVIEW)

A handful of House Republicans were dealt a blow Friday in their fight against the requirement they be vaccinated against COVID-19 or stay out of the chamber in the upcoming session and participate by Zoom.

The six lawmakers – who include Jenny Graham from Spokane, Rob Chase from Liberty Lake and Bob McCaslin from Spokane Valley – claimed their constitutional rights would be violated by a rule being imposed by House Democratic leaders that one must show proof of vaccination to be present on the floor for debates and votes.

Without providing such proof, they’ll have to watch, debate and vote over the internet. Unlike the Senate, the House will not allow a negative test instead of a vaccination.

The House leaders, who form a 4-3 majority of the Executive Operations Committee, are not allowing exemptions for personal or religious reasons and are infringing on the right of free speech, the six lawmakers claimed in a lawsuit. They might also be violating the Voting Rights Act by depriving their constituents of their elected members’ ability to vote on legislation, it alleges.

“When these members are not allowed in House chambers, that’s equivalent to expulsion and there was no vote,” attorney Simon Serrano, of the Silent Majority Foundation, which bills itself as “a grass roots organization centered on protecting America’s constitution and theological foundation,” said in a Thurston County Superior Court hearing for an order temporarily blocking the vaccination rule.

Jeffrey Even, an assistant attorney general who handles many of the state’s electoral and legislative challenges, countered that the six were not, in fact, being expelled, by pulling the definition out of Black’s Law Dictionary.

“’Expulsion,’” he read, “ ‘to deprive a member … of his membership.’ That quite obviously is not happening here.”

House members don’t have a vaccine mandate, he said, so the rules don’t infringe on their personal or religious beliefs. They can participate in debates and vote remotely, like in the 2021 session, so there is no violation of the “one person, one vote” rule of the Voting Rights Act.

“If you don’t want to be vaccinated, that’s fine. You can still participate,” Even said. “It’s just that you’re not going to do it on the House floor.” In fact, not everyone who has proof of vaccination will be allowed on the floor for debates and votes because of social distancing rules, he added.

Legislating remotely isn’t the same as being there, Serrano argued, and in this year’s session, Graham was among lawmakers who sometimes had technical problems that hampered participation. Legislators who have tech problems should work with House staff to fix them, Even countered.

While many Republicans have balked at rules surrounding COVID protections in the workplace – which is what the House floor is for the six plaintiffs – there are some unusual aspects to their complaint. One is the reference to the Voting Rights Act, the latest version of which drew almost unanimous opposition from House Republicans. The other is the very act of asking a separate branch of government to tell the Legislature what it can and can’t do.

But desperate times sometimes call for desperate measures.

Superior Court Judge Mary Sue Wilson said she doesn’t believe the operations plan mandates vaccines and doesn’t have to decide whether it runs afoul of the Voting Rights Act or violates certain constitutional rights. The House adopted rules at the beginning of the 2021 session that give an Executive Committee with four Democrats and three Republicans the power to set rules for the chamber to operate and Chief Clerk Bernard Dean the authority to carry them out.

“The direct remedy within the House … would be to introduce a resolution that would modify or repeal (the rules),” she said.

She denied the preliminary injunction, saying the House members weren’t likely to succeed on their claims.

“Simply put, the plans do not prevent the plaintiff legislators from participating in the legislative process,” Wilson said.

Questions about violation of personal rights or religious freedom could apply with a vaccine mandate, but “I don’t read the plan on mandating vaccines,” Wilson said. The lawmakers had also argued in their documents that, with a new COVID variant, vaccines might not be as effective.

“I’m not wading into that,” she said.

While denying the preliminary injunction, Wilson said she wasn’t completely closing off their case. But based on a ruling by the state Supreme Court that the judiciary doesn’t interfere in the internal workings of the Legislature, she said the lawmakers aren’t likely to succeed.

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