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Courts again reject Democrats’ request for remote participation in NH House

Speaker Sherman Packard
Dan Tuohy
House Speaker Sherman Packard leading an outdoor session of the New Hampshire House in 2021.

A federal judge has dismissed a lawsuit filed by a group of medically frail Democratic lawmakers who have been unable to participate remotely in the New Hampshire House of Representatives since the start of the COVID-19 pandemic.

The case was first filed in 2021 by former House Minority Leader Renny Cushing, who argued House Speaker Sherman Packard, a Republican, was violating the Americans with Disabilities Act by not allowing lawmakers to participate in hearings and vote remotely during the pandemic. They argued that a lack of accommodation for medically frail lawmakers forced them to “either place themselves or their families at an extreme risk of death, or they can forego participation in democratic institutions.”

Cushing, along with a fellow petitioner, former state Rep. Katherine Rogers, have both died since the suit was filed.

A district court judge originally declined to impose a temporary injunction forcing remote participation. The U.S. First Circuit Court of Appeals ultimately ruled in a split decision that Packard has legislative immunity and that the creation of House policies are a core legislative function. The case was then returned to a lower court, where Democrats refiled their lawsuit with additional defendants.

In a 16-page opinion released Monday, federal Judge Landya McCafferty wrote that “the court is not unsympathetic to plaintiffs’ legitimate concerns.” However, McCafferty cited the U.S. First Circuit Court of Appeals ruling in dismissing the Democrats’ latest complaint in the case, noting that “the rules governing remote participation are legislative acts regulating conduct on New Hampshire’s House floor.”

In a statement, Packard said the ruling “reaffirms our belief there is a democratic process by which the House adopts its rules, and that process is not subject to intervention by the courts.”

At the height of the pandemic, New Hampshire lawmakers gathered at a variety of outdoor spaces to vote on bills, including a session staged from UNH's lacrosse field in Durham. But as COVID vaccines became available and rates of transmission declined, the largest state legislature legislature in the country —400 members — returned to in-person hearings and floor votes at the State House.

The New Hampshire House was nearly evenly divided in its recently completed session, with Republicans holding a slim majority. Rep. David Cote of Nashua, who was among the original plaintiffs in the suit, didn’t attend any House sessions or cast a single legislative vote, citing serious health risks if he attended in person. In July, Cote announced he would resign his seat.

The New Hampshire Democratic Party issued a statement Tuesday criticizing House Republican leadership for failing to adopt measures that would allow remote participation, something the GOP-controlled New Hampshire Senate did with little fanfare.

“Speaker Packard’s spiteful decision to disenfranchise members suffering from severe health concerns underscores the importance of replacing him with a responsible leader,” said a party spokesperson. “We are deeply disappointed by the judge’s decision but look forward to our new next speaker changing this terrible policy.”

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.
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