Federal court strikes down remote voting lawsuit by NH Democrats, again

By ETHAN DEWITT

New Hampshire Bulletin

Published: 09-13-2023 6:48 PM

The U.S. District Court of New Hampshire has rejected the latest attempt by Democratic lawmakers to force the House of Representatives to allow remote voting, dealing another blow to a multi-year legal effort.

In a decision Monday, U.S. District Court Judge Landya McCafferty granted the defendants — who included House Speaker Sherman Packard — a motion to dismiss the case.

The decision by McCafferty is the second time the U.S. District Court has addressed the matter. The plaintiffs had filed an earlier lawsuit in 2021, during the COVID-19 pandemic. Over a series of appeals, that case was rejected by the District Court and the First Circuit Court of Appeals in Boston. After the U.S. Supreme Court declined to hear a further appeal, the plaintiffs filed an amended version of the lawsuit back in District Court, changing the defendants but sticking to similar legal arguments.

That new attempt has now also been dismissed. A lawyer for the plaintiffs, Israel Piedra, said Tuesday he was not sure if they would appeal the decision.

The plaintiffs are asking federal courts to require Packard to allow remote voting for members of the House who are too immunocompromised to show up to vote in person.

The lawsuit was brought by six Democratic representatives: Renny Cushing, David Cote, Kenneth Snow, Katherine Rogers, Diane Langley and Charlotte DiLorenzo. Each of them had health conditions they said made it dangerous to appear in person for votes with the 400-member House.

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The lack of accommodations meant that the representatives could “either place themselves or their families at an extreme risk of death, or … forego participation in democratic institutions,” the plaintiffs argued to the court.

Cushing and Rogers have since died due to cancer. Other plaintiffs, like Snow and Langley, have either retired or failed to win re-election, and Cote announced his resignation earlier this year. Only DiLorenzo continues to serve as a representative.

The plaintiffs had argued that the decision by the House speaker to not allow for remote voting had violated their rights under the state and federal constitutions, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibits exclusion on the basis of disability.

But Packard pointed to the doctrine of legislative immunity, arguing he could not be sued for carrying out his “core legislative functions.” Packard and others note that House rules currently bar remote voting; allowing remote voting would require a vote by the House to do so, which has not been successful.

In their amended lawsuit, the plaintiffs added House Clerk Paul Smith, the New Hampshire House of Representatives and the State of New Hampshire to the list of defendants, seeking to address the “legislative immunity” defense by broadening their targets beyond the House speaker himself.

But in its decision Monday, the court said Smith is also protected by legislative immunity because his job duties fall under “legislative acts.” The court pointed to a lawsuit filed by U.S. Rep. Thomas Massie, a Kentucky Republican, against former House Speaker Nancy Pelosi, a California Democrat, objecting to the U.S. House’s mask mandate. That lawsuit was dismissed because of legislative immunity, despite the fact that the House sergeant-at-arms and chief administrative officer were listed as defendants, the New Hampshire court noted.

The court raised questions as to whether “the State of New Hampshire” could count as a defendant at all but ruled that if it could, legislative immunity would likely still apply.

Ultimately, the court reiterated the conclusions it had made its original decision and ruled that it was bound by the decision by the en banc panel of the Circuit Court of Appeals in 2022.

“The court is not unsympathetic to plaintiffs’ legitimate concerns,” wrote McCafferty in her decision. “But it cannot base its decision on whether it agrees with the procedures voted upon by the New Hampshire House of Representatives.”

Reacting to the decision, Packard said it affirmed the separate roles of the courts and the Legislature.

“The order speaks for itself,” he said in a statement. “It 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.”