The panel wondered what good it would do to tell Republican Speaker Sherman Packard to let members claiming a disability to participate virtually if all of those bringing suit are inoculated.
Israel Piedra of Welts White & Fontaine PC, arguing for the all-Democratic group of legislators with underlying conditions suing under the Americans with Disabilities Act, told the court that some of the lawmakers have not received both doses or gone through the appropriate waiting period to be considered fully vaccinated.
"It sounds like unless we get an opinion out in two weeks, the case is moot," responded U.S. Circuit Judge William J. Kayatta Jr. "If everyone is vaccinated within a week or two, it seems that would leave no case."
Piedra said that while New Hampshire legislators were not given any special preference for access to the vaccine, many have received at least one dose. But the legislature is scheduled to meet, he said, including three meetings later this week.
"So you're telling us today that to give you meaningful relief we need to get a decision out tomorrow?" Judge Kayatta asked, adding that the issue seemed significant and ripe for review "months ago."
While not completely agreeing with the premise of the question, Piedra acknowledged that, "for the vast majority of plaintiffs, your honor is right. The more time that passes, the less likely that this accommodation would be considered reasonable by a trial court."
The First Circuit heard the case on a quick timeline, just days after the speaker filed his brief for the court and weeks after the Democrats' opening appellate salvo.
The speaker, who ascended to his role when his predecessor died from COVID-19 a week after being sworn in, argued that legislative immunity bars any court from wading into how the New Hampshire House of Representatives chooses to conduct its business.
Even after suggesting the case may be moot, the panel wondered whether the legislature could ostensibly discriminate against people with disabilities, especially after taking significant federal COVID-19 relief funds aimed in part at allowing state governments to operate during the emergency.
Samuel Garland of the New Hampshire Attorney General's Office, representing the speaker, said the challenge is a logistical one. The House has 400 members, the largest of any state legislature in the country, and the full legislature is one of the largest bicameral legislatures in the English-speaking world.
"All 400 wouldn't be participating remotely, it's just those with the underlying health conditions," said U.S. Circuit Judge O. Rogeriee Thompson.
U.S. District Judge Douglas P. Woodlock, sitting by designation, wondered what would stop the speaker from passing a rule barring Asian American legislators from voting. Garland said that rule would be discrimination on its face, whereas the rule barring virtual votes applies to everyone.
"What if there was a rule that to cast your vote, you must stand and rise?" Judge Kayatta asked. "Now you've got seven legislators in wheelchairs who can't do that. They ask, 'Can we stay sitting?' and the speaker says 'No.' That's a facially neutral rule."
"The question would be 'Is there any rational reason for it or is it an irrational rule?'" Garland replied, arguing that the virtual voting ban is rational due to the size of the lawmaking body.
Packard argued the lower court got it right in finding that the claims are barred under U.S. Supreme Court precedent. He said it makes no difference whether the representatives sue the state or the speaker in his official capacity.
Packard noted that the House has overwhelmingly rejected remote participation in floor sessions. But the Democrats suing told the panel the House conducted virtual committee meetings, including executive sessions, in 2020 and received an advisory opinion from the state's top court that said "holding a House session remotely, either wholly or in part, whereby a quorum could be determined electronically," would not violate the state's constitution.
Republicans gained control of the chamber, whose 400 members work essentially as volunteers, in November.
The Democratic legislators are represented by Israel F. Piedra of Welts White & Fontaine PC and Paul J. Twomey of the Paul Twomey Law Office.
The speaker is represented by James S. Cianci of the New Hampshire House of Representatives and Anthony J. Galdieri, Samuel R.V. Garland, Jennifer Ramsey and Daniel E. Will of the New Hampshire Attorney General's Office.
The case is Cushing et al. v. Packard, case number 21-1177, in the U.S. Court of Appeals for the First Circuit.
--Editing by Orlando Lorenzo.
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