A federal judge shot down Democrats’ attempt to force New Hampshire House GOP leadership to allow remote participation in the upcoming session scheduled to begin Wednesday.
“The court concludes that the Speaker is immune from plaintiffs’ suit challenging his enforcement of a House rule that is closely related to core legislative functions,” Judge Landya McCafferty said in her 17-page order dismissing the Democrats’ request for injunctive relief.
Managing the risks of COVID-19 is a tough challenge for the 400-member House, the third-largest legislative body in the world. (Only the U.S. Congress  and the British House of Commons  are larger.)
Speaker Sherm Packard and his office previously denied requests to allow remote attendance, instead offering a square-footage solution. Wednesday’s session will occur in a 50,000 square-foot venue in Bedford, allowing far more than the CDC-recommended guidelines for social distancing among House members.
Even though former Democratic Speaker Steve Shurtleff used the same strategy a few months ago without objection, Democrats sued this time.
Led by House Minority Leader Renny Cushing of Hampton, they claimed the set-up violated the Americans with Disabilities Act. Before Judge Landya McCafferty on Friday, they argued Speaker Packard did not have legislative immunity, which would free the court to rule in their favor.
Judge McCafferty disagreed.
In the court’s ruling, McCafferty reiterated the House has met in-person since the onset of the pandemic and laid out the number of votes taken that would have allowed remote attendance, all of which failed. Lawyers for Speaker Packard repeated that point at last Friday’s hearing.
“We’re being sued because the vote [to allow remote participation in session] failed,” attorney Anthony Galdieri argued, an opinion the judge affirmed in the ruling.
Mason’s Manual of Legislative Procedure strictly prohibits remote sessions without a House Rule or Constitutional Amendment allowing it, neither of which exist in New Hampshire.
“All this ruling means is that the Speaker is solely to blame for active and obvious exclusion of members of the House,” Cushing said in a statement following the judge’s order.
“Unfortunately, this case has exposed the callous indifference of House Republican leadership toward our most vulnerable members during the COVID-19 crisis that has taken the lives of a half a million Americans,” Cushing wrote. The Hampton Democrat says he still plans to attend in-person this week, despite his ongoing cancer battle. He encouraged the members of his caucus to make their own risk assessments.
On Organization Day in December, the first session after their party lost power, more than 118 Democrats chose not to attend. In January, that number was down to a few dozen.
Speaker Packard insists this week’s sessions will be safe. “We will continue to work with all House members to ensure that if they choose to attend any legislative meeting in person, that they can be confident that we are taking a high degree of precaution, and have extensive health and safety measures in place.”
Among safety precautions implemented by the Republican Speaker are 10 to 12 feet of social distancing between members, separate entrances for Democrats and Republicans (as many GOP representatives have been known to attend maskless), separate restrooms for maskless members, and a mask mandate for all non-members.