Appeals court considers remote access to New Hampshire House

  • Legislators stand for the Pledge of Allegiance during a New Hampshire House of Representatives legislative session held at NH Sportsplex, due to the coronavirus, Wednesday, Feb. 24, 2021, in Bedford, N.H. (AP Photo/Charles Krupa) Charles Krupa

Associated Press
Published: 4/5/2021 7:24:11 PM

Federal appellate judges on Monday questioned whether the New Hampshire House has undermined the Americans With Disabilities Act by insisting on in-person sessions during the coronavirus pandemic, while also suggesting that vaccinations have made the issue moot.

Seven Democratic lawmakers sued Republican House Speaker Sherm Packard in February arguing that holding in-person sessions without a remote option for medically vulnerable lawmakers violates the Americans with Disabilities Act and has forced them to either risk their lives or abandon their duties as elected officials.

A U.S. District Court judge in Concord later ruled that the speaker can’t be sued for enforcing House rules, prompting an appeal to the 1st U.S. Circuit Court of Appeals in Boston, which held oral arguments Monday. Because of coronavirus precautions, only an audio recording of the hearing was publicly accessible, and the judges did not identify themselves before speaking.

One judge asked Assistant Attorney General Sam Garland, who was representing Packard, whether the House could enact a rule that prohibited Asian American lawmakers from voting on legislation. Garland said no, because that would be discriminatory on its face, while the rule in question is a blanket prohibition on remote sessions that doesn’t single out a particular group. But the judge noted that a facially neutral rule could still have the effect of discrimination.

“We’re here wrestling with the problem of: can you have a rule, the effect of which is to undercut the ADA?” said the judge, who also seemed skeptical of the notion that it would be too difficult to provide remote access.

Since the start of the pandemic, the 400-member House has met several times at the University of New Hampshire ice arena, outside on a UNH athletic field, and — after former Speaker Dick Hinch died of COVID-19 — from their cars in a parking lot. More recently, they have met at a Bedford sports complex and have three sessions scheduled for that location later this week.

Another judge asked the plaintiffs’ attorney whether the lawmakers in question have been vaccinated against the virus. Attorney Israel Piedra said at least some of them have not yet received their second doses.

“If everyone’s vaccinated within a week or two, then that would seem to leave no case,” the judge said. “It’s sounding like an issue that was ripe and very significant and important a couple of months ago, but I’m having trouble understanding now what the dispute is about.”

The U.S. Centers for Disease Control and Prevention advises that those who are fully vaccinated can gather indoors with unvaccinated people from one other household without masks or social distancing. But it still says vaccinated people should avoid medium or large-sized gatherings.

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