House Democrats seek to expedite lawsuit to force remote participation

As the House Speaker’s Office begins preparing for the chamber to return to Representatives Hall this month, House Democrats have sought to speed up a decision in their federal lawsuit to require remote participation.

In a pleading to the U.S. Circuit Court of Appeals in Boston Monday, House Democrats argued Republican Speaker Sherman Packard’s announcement to convene the 400-member body in the tight confines of Representatives Hall for the first time since the emergence of COVID-19 was premature. And they argued the move made the court’s decision more urgent. 

The move to Representatives Hall comes after a two-year period in which the House has convened in other venues while the virus has spread, choosing spaces that allow for at least six feet of separation between seats. In his announcement last week, Packard said that the decrease in the omicron variant and the rise in vaccinations meant that those venues were no longer necessary and that the House could reconvene in the hall starting on March 10.

But in their pleading to the First Circuit Court Monday, written by New Hampshire attorney Paul Twomey, House Democrats said the return to Representatives Hall creates less safe conditions compared with the previous venues, because most members will be sitting within three feet of other members and masking is not required.

Only the speaker, who sits in the “well” of the House at the podium, will be adequately distanced from his colleagues, Democrats argued.

House Democrats have been fighting in federal court to force Republicans to allow for remote participation in House votes for members whose health is too fragile to participate in person. Republican lawmakers have voted down multiple attempts to allow for remote participation in the House over the past two years. In February 2021, a group of House Democrats who are immunocompromised sued Packard in U.S. District Court in Concord to force the issue.

Within a week of receiving the lawsuit, District Court Judge Landya McCafferty rejected Democrats’ claims, holding that Packard was protected against the lawsuit by legislative immunity. Democrats later appealed to the Circuit Court; a panel of that court later ruled to overturn the District Court decision.

But movement on the lawsuit has slowed down since Packard successfully asked for the issue to be reviewed “en banc,” which requires the full Circuit Court to weigh in on the panel’s decision. Democrats say there has been no advancement of the case since the request was granted, in June.

Now, the Democratic lawmakers argue that the change in venue back to Representatives Hall has brought the question of remote meeting “a renewed sense of urgency.” And they say that the deteriorating health conditions of several of the plaintiffs who sued a year ago has made the decision more important.

On Wednesday, one of the plaintiffs, Rep. Renny Cushing of Hampton, announced he was stepping aside as House Democratic leader to take a medical leave of absence as he fights stage four prostate cancer.

“Martin Luther King wrote in his Letter from Birmingham Jail, ‘Justice too long delayed is justice denied,’” Twomey wrote in the pleading for Democrats. “This is especially true where the rights being infringed upon are those of not only the individual Plaintiffs, but also other ADA qualifying Representatives, all of their constituents, and the entire population of New Hampshire, all of whom may well have to live for years subject to laws enacted by a legislature which effectively denies access to the disabled unless they are willing to risk death to participate.”

In announcing the decision to move to Representatives Hall, Packard and House Republican leadership have pointed to a number of measures taken that they argue mitigate the health concerns, including the provision of masks to those who want them and the installation of high-power ventilation systems that cycle the air in the chamber every 20 minutes.

“Legislators are being asked to self-screen for symptoms and stay home if they are sick,” Packard said in a statement Feb. 24. “Advanced air-filtration units in addition to our existing robust air handling system in the Chamber will be in place.”