No. 21-1177

ROBERT R. CUSHING, individually and in his capacity as the Minority Leader of the N.H. House of Representatives; DAVID COTE; KATHERINE D. ROGERS; KENDALL SNOW; PAUL BERCH; DIANE LANGLEY; CHARLOTTE DILORENZO; N.H. DEMOCRATIC PARTY,

Plaintiffs, Appellants,

v.

SHERMAN PACKARD, in his official capacity as Speaker of the House for the N.H. House of Representatives,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Howard, Chief Judge, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.

Israel Piedra, with whom Welts, White & Fontaine, PC, William E. Christie, S. Amy Spencer, and Shaheen & Gordon, P.A. were on brief, for appellants. Anthony J. Galdieri, Senior Assistant Attorney General for the State of New Hampshire, with whom Samuel R. V. Garland, Assistant Attorney General for the State of New Hampshire, and Jennifer S. Ramsey, Assistant Attorney General for the State of New Hampshire, were on brief, for appellee. Katherine E. Lamm, Attorney, Civil Rights Division, United States Department of Justice, with whom Kristen Clarke, Assistant Attorney General, and Thomas E. Chandler, Attorney, Civil Rights Division, United States Department of Justice, were on brief, for the United States, amicus curiae. Joshua L. Gordon was on brief for ABLE - New Hampshire and National Disability Rights Network, amici curiae.

Opinion En Banc

March 25, 2022 BARRON, Circuit Judge, with whom Howard, Chief Judge, and Lynch, Circuit Judge, join. Does either Title II of the Americans with Disabilities Act ("ADA") or § 504 of the Rehabilitation Act ("RHA") authorize a federal court to resolve a dispute among members of a state legislative body about whether votes on bills may be cast remotely rather than in person? That question and others closely related to it arise here from a dispute among members of the New Hampshire House of Representatives ("House") over the proper way for that legislative body to conduct its official proceedings in the face of the threat to health that the COVID-19 virus poses.

Procedurally speaking, the questions come to us in connection with an interlocutory appeal by members of the House, each of whom is alleged to be especially vulnerable to the virus due to a medical condition, and the New Hampshire Democratic Party. The appeal challenges the denial by the United States District Court for the District of New Hampshire of a motion for a preliminary injunction against Sherman Packard, the Speaker of the House. The motion seeks to require the Speaker to institute procedures that would permit the representatives to participate remotely in House proceedings -- including with respect to the casting of votes on bills -- to reduce their risk of being infected with the virus.

- 3 - The underlying suit names the Speaker, in his official capacity, as the defendant and alleges his violation of both Title II of the ADA and § 504 of the RHA, among other provisions of federal and state law, based on his refusal to grant the representatives' request for that same accommodation. The motion for a preliminary injunction was based on the plaintiffs' ADA- and RHA-related claims.

The District Court denied the motion based on the Speaker's assertion of legislative immunity. See Cushing v. Packard,