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The U.S. Supreme Court is refusing to take the appeal made by Democratic lawmakers suing state House Speaker Sherman Packard over the legislature’s COVID-19 restrictions. 

The high court rejected the petition for appeal this week as the Democratic lawmakers sought to overturn the First Circuit Court of Appeals ruling that held Packard (R-Londonderry) is protected by legislative immunity when making House rules, including rules about what COVID precautions to institute.’

Since the beginning of the COVID-19 pandemic, Granite State Democratic legislators have aggressively pushed restrictions, including mask mandates and a demand to allow remote voting. And Democrats have continued that push even after a vaccine became widely available and the data showed mitigation efforts did little to stop the spread of the novel virus and its variants.

After the First Circuit Court ruled against the Democrats earlier this year, their legal team filed the appeal before the U.S. Supreme Court and prepared a new complaint in the lawsuit at the federal court in Concord.

Packard’s office said Wednesday he is reviewing his options after the development with the U.S. Supreme Court noting, “Speaker Packard is reviewing the latest details of this ongoing litigation case with his legal team.”

Democrats have been trying, and failing, to get a court to impose COVID rules on the State House that would allow for remote access for legislators who live with serious health conditions. The new complaint filed this summer claimed former Minority Leader Rep. Robert “Renny” Cushing died as a result of COVID-19.

House Minority Leader Rep. David Cote (D-Nashua) has taken over as lead plaintiff on the lawsuit. Cote, 61, lives with cerebral palsy and has missed at least two years of votes in the House.

Two of the original plaintiffs in the lawsuit, Cushing and Rep. Katherine Rogers (D-Concord), have died since it was first filed. Both Cushing and Rogers were diagnosed with cancer.

The First Circuit’s ruling found Packard enjoys “legislative immunity” and is exempt from following the Americans with Disabilities Act, which was the original basis for the lawsuit.

The lawsuit stated Cushing contracted COVID-19 and that became a complicating factor that resulted in his death. At the time, Cushing was getting experimental treatment for stage-4 prostate cancer.

The lawsuit contended that since most of the legislators seeking remote access are Democrats, the Republican Speaker used the House rules to gain a partisan advantage.

“The refusal to provide any accommodations is for the purpose of gaining an unfair partisan advantage. Motions to explicitly allow remote attendance have repeatedly been decided on a partisan basis,” the lawsuit states. “In essence, the defendants have deliberately created an extraordinary dilemma for the disabled—they can either place themselves and their families at an extreme risk of death, or they can forego participation in democratic institutions, thus leaving their constituents unrepresented.

“This is really not fundamentally different from pointing a gun to the heads of the individual plaintiffs to block them from entering the House. Given the ready availability of measures to provide reasonable accommodations, the refusal to do so is not only of an extraordinary character but shocks the conscience,” Democrats wrote.

Packard has praised previous rulings that protected the prerogative of elected House leadership to govern the House and its rules.

“This opinion reaffirms the importance of the integrity of the legislature and the legislative process,” Packard said in March when the appeals court sided with the GOP. “Both the First Circuit and District Court evaluated the plaintiffs’ arguments and ruled against them. My next step is to continue working on legislation that will benefit the state of New Hampshire and keep pushing us forward.”

By last March, two years after the pandemic began, most Republican and independent voters had moved past the COVID dread Democrats still embraced, said Spencer Kimball, Emerson College’s Director of Polling.

“I have been looking at COVID restrictions and see a big difference nationally between Democratic voters where 38 percent see COVID as a major health threat, while that number is about 17 percent among independents and 14 percent among Republicans,” Kimball said at the time.

In October 2020, the response to the coronavirus was one of the top three issues on voters’ minds, according to polls. In September of 2022, as the House Democrats continued their appeal, it was tied for 14th on the list of voter concerns.

“Everyday Granite Staters are moving on with their lives, but New Hampshire House Democrats are still supporting mandates, still wearing masks, and apparently still trying to strong-arm the legislature in the court system,” said Rep. Ross Berry (R-Manchester). “Today is a big win for everyone living in 2022, and not trying to litigate 2019.”

Most Granite Staters may have moved past the “masks and lockdowns” phase of COVID-19, but state Democrats are still pursuing their months-old lawsuit targeting state House Republican leadership over pandemic policies. And in their latest filing, Democrats have raised the rhetorical stakes, insinuating that Republicans are responsible for former House Minority Leader Renny Cushing’s death.

Long-standing House rules require members to attend sessions in person in order to participate. Since February 2021, Democrats have been in court attempting to force Speaker Sherman Packard (R-Londonderry) and GOP leadership to allow members to conduct business — including casting votes — remotely due to fears of COVID-19. “They still want to do everything by Zoom,” Packard to NHJournal. “It just doesn’t make any sense.”

The lawsuit, originally filed by Cushing and six other Democratic legislators, has repeatedly been shot down in court in the face of expansive accommodations by House leadership. For example, during the height of the pandemic, House sessions were held at the New Hampshire Sportsplex in Bedford, a 50,000-square-foot facility. Before that, members met at UNH’s Whittemore Center.

In March, the First Circuit Court of Appeals in Boston denied New Hampshire Democrats an injunction against Packard. House Minority Leader Rep. David Cote (D-Nashua) responded by saying he would continue the lawsuit.

Cote, 61, lives with cerebral palsy among other health issues and, despite holding the title of Assistant Minority Leader and now Minority Leader, he has not been to Concord for a vote in more than two years.

Packard successfully argued that, as speaker. he enjoys “legislative immunity” and is exempt from following the Americans with Disabilities Act, which was the original basis for the lawsuit’s appeal for accommodation

The new complaint, filed in the United States District Court in Concord, notes that two of the original plaintiffs, Cushing and Rep. Katherine Rogers (D-Concord) have since died. Both Cushing and Rogers were diagnosed with cancer.

While the lawsuit does not say where or how Cushing contracted COVID-19, it claims the virus was the complicating factor that resulted in his death. Cushing, suffering from stage four prostate cancer, had been responding well to innovative cancer treatments. There was hope that, with further treatments, he would be able to recover and return to his duties full-time until he got COVID this year, Democrats claimed in the filing.

“Despite being fully vaccinated, his health took an almost immediate turn for the worse, and he was never able to recover well enough to resume the immunology treatments at Mass General [Hospital] due to the serious impact of COVID-19. The untreated cancer complicated by COVID-19 caused his death shortly thereafter,” the lawsuit states.

Even as Cushing battled cancer, and fought to get remote access, he continued to show up in Concord for votes and other legislative business, according to the lawsuit. Rogers, who suffered from degenerative joint disease, also came to the House to conduct business. The lawsuit also blames her death on the GOP policy.

The lawsuit also contends that since the majority of the legislators seeking remote access were Democrats, the Republican Speaker was engaged in partisan politics, not protecting the rules of the House.

“Motions to explicitly allow remote attendance have repeatedly been decided on a partisan basis,” the lawsuit states. “In essence the Defendants have deliberately created an extraordinary dilemma for the disabled—they can either place themselves and their families at an extreme risk of death, or they can forgo participation in democratic institutions, thus leaving their constituents unrepresented.

“This is really not fundamentally different from pointing a gun to the heads of the Individual Plaintiffs to block them from entering the House. Given the ready availability of measures to provide reasonable accommodations, the refusal to do so is not only of an extraordinary character but shocks the conscience.”

Packard says what is really shocking is that Democrats would use such inflammatory rhetoric, particularly on an issue that has been largely resolved. “It’s disappointing they would make an insinuation like this about Renny Cushing and Kathy Rogers. It is unbelievable to me they are choosing to go down this path.”

Packard said the latest filing “has a lot of inaccuracies and statements that just aren’t true,” but he is waiting to hear from the lawyers before elaborating further.

“We’ll be meeting with the lawers later this week to go over the filing in full and decide what our next step should be,” Packard said.