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If Gov. Chris Sununu wants to do something about the Historical Highway Marker honoring notorious Communist Elizabeth Gurley Flynn, he is free to do it himself, according to the Concord City Council.

Concord Mayor James Bouley said Monday night he was confused by the letter he got last week from Sarah Stewart, commissioner for the New Hampshire Department of Natural and Cultural Resources, asking the city to request that the state remove the Flynn marker.

“We did not approve any marker, we don’t have that authority; we don’t approve the marker’s text, we don’t have that authority; and lastly, we can’t remove something that is not our responsibility from your property,” Bouley said.

The Flynn marker angered Republican members of the state’s Executive Council, prompting Sununu to blame Concord leadership and demand that it be removed. 

“Why Concord would want to put this in the first place, God knows,” Sununu said Friday on WGIR radio. “Just tell us to take it down, and we’ll take it down. I’d love to take it down.”

The problem for Sununu — or perhaps the solution — is that the marker is the state’s responsibility from beginning to end, according to Concord City Attorney James Kennedy. He said the marker was placed in the city by the Department of Natural and Cultural Resources and sits on state land. The marker features text about Flynn’s life and Communist affiliation that was approved by the state and additionally includes a seal of the State of New Hampshire. The fact that now Sununu and Stewart are asking the city to request its removal makes little sense, Kennedy said.

“That’s a curious concept to me,” Kennedy said.

According to Kennedy, if the state wants to remove the marker, it is free to follow the state law governing that process. 

Executive Councilor Janet Stevens (R-Rye) also places the responsibility at the feet of state government.

“The disgraceful placement of a historic highway marker in Concord, honoring Communist Elizabeth Gurley Flynn, a devout Stalinist and prominent organizer in the Communist Party, has elevated the need for an overhaul of the process for awarding historic markers in our state,” Stevens said in an editorial for NHJournal.

“There was a clear lack of common sense in allowing this new marker to be approved,” Steven added.

The state did seek Concord’s approval to install the sign, which went up on May 1. But Bouley and the councilors said that was a courtesy and had more to do with checking traffic visibility and general construction safety. That has not stopped Sununu from hammering Concord over the state marker.

“I don’t think it should ever have been put up; I don’t think Concord should have been advocating for it,” Sununu said.

According to available public records, the City of Concord never advocated for the Flynn marker. Liberal activists Arnie Alpert and Mary Lee Sargent petitioned the Department of Natural and Cultural Resources for the Flynn maker based on her historical significance. Flynn was an early labor activist, a civil rights pioneer, and a supporter of women’s access to birth control as well as the head of the Communist Party in America. 

Flynn was kicked out of the ACLU, which she helped found, because of her membership in the Community Party. She joined in 1936, three years after the USSR murdered close to 9 million people in a genocidal famine known as the Holodomor, and was about to start killing millions more. When she died in 1964, Flynn received a state funeral in Moscow’s Red Square with 25,000 people attending.

While Sununu has blamed Concord for the whole mess, and Stewart has claimed her department had no input in the text, records obtained Monday by NHJournal show otherwise. Department of Natural and Cultural Resources employee Amy Dixon worked on researching and editing the proposed text for the Flynn marker, even adding that Flynn was a supporter of women’s suffrage. Dixon then presented the marker proposal to Concord officials and explained all expenses would be the state’s responsibility. 

Kennedy said that under U.S. Supreme Court rulings protecting the First Amendment, cities are unable to regulate the content of signs put up in their jurisdictions. 

City Councilor Amanda Grady Sexton said if the state is upset about the sign, it can take it down anytime. “If the state wants to remove the sign, they can do so.”

City Councilor Zandra Rice Hawkins suggested Concord may still put up its own marker to commemorate Flynn, in which case the state would be actually powerless as opposed to engaging in the current game of blame-shifting.

“I’d be disappointed if the state removed the marker and tried to whitewash history,” Hawkins said.

Fallout from the state’s historic marker honoring a notorious Communist continues as the Sununu administration invites Concord to remove the monument, and the city insists it never requested the placard in the first place.

“If the City Council objected to the placement of the marker on city property, the application would have been denied,” New Hampshire Department of Natural and Cultural Resources Commissioner Sarah Stewart wrote to Concord’s mayor Thursday.

“It’s their sign, not ours,” Ward 3 Concord City Councilor Jennifer Kretovic told NHJournal. “And if they want to say differently, they can go pound sand.”

The controversy began in Wednesday’s Governor’s Council meeting when Executive Councilors Dave Wheeler and Joe Kenney raised questions about the marker, unveiled on May Day, honoring Concord native Elizabeth Gurley Flynn. Flynn was an unapologetic Stalinist who joined the Communist Party during the purges, led the CPUSA during the Cold War, and received a state funeral in Red Square from a grateful Soviet Union.

Flynn’s marker took members of the Executive Council by surprise this week, unhappy the state is seemingly celebrating an anti-American Communist. Gov. Chris Sununu promised to investigate how the sign got approved and the possibility of getting it removed. 

Stewart, who oversees the Division of Historical Resources (DHR), told NHJournal she “never reviewed this request. The process that is in place doesn’t include an approval from me. This is something I am discussing with the governor.”

On Wednesday, she told the executive councilors her office was not responsible for the marker, stating the application came from the City of Concord.

“Our agency is not in the business of approving or denying the markers,” Stewart said. “We check for factual accuracy, and we help make sure that the text fits on the space allocated on the marker.”

But Tony Schinella at The Patch reported Thursday morning that “the request for the marker was made to the Concord City Council by a state employee — Amy Dixon, a community preservation coordinator in Stewart’s department, on Sept. 12, 2022.”

“According to the timeline of records by the city, the council approved forwarding the request at its October 2022 meeting to the city’s Heritage Commission,” The Patch reported.

A few hours after the report was published, Stewart released a letter to the city of Concord urging them to request that the Flynn marker be taken down.

“I am reaching out to inform the City of the opportunity to reevaluate your approval of this marker,” Stewart wrote to Concord Mayor James Bouley. Her letter squarely places the blame for the Flynn marker on Concord officials.

“There was a public hearing conducted by the Concord Heritage Commission, and then (the marker) was approved at a Concord City Council meeting,” Stewart wrote. “If the City Council objected to the placement of the marker on city property, the application would have been denied.”

But city records show that application for the Flynn marker was brought into the city by DHR’s Amy Dixon, a community preservation specialist.

“The New Hampshire Historical Highway Marker Program is respectfully requesting City Council approval to install Marker #278, which honors former Concord resident Elizabeth Gurley Flynn for her accomplishments in leading America’s early 20th-century labor movement and for her support of civil liberties and women’s rights,” Dixon wrote in a September letter to the City Council.

Dixon assured the Council the state would pick up the costs of the marker. 

“The City would be under no financial obligation. We only seek City Council approval for its location, which is proposed near the southeast corner of Court and Montgomery streets near the county courthouse,” Dixon wrote to Concord officials.

Kretovic told NHJournal Stewart’s version of events is simply not true. While Concord did approve the marker, that process was merely a formality, she said. The state controls the whole process from start to finish, she said.

“It’s a courtesy that the state reaches out to the city and says, ‘Hey, we’re putting a sign in your city,’” Kretovic said. “We don’t bless that wording; we have nothing to do with that,” Kretovic said.

Arnie Alpert, a retired liberal activist, and Mary Lee Sargent, another left-learning activist, got the original ball rolling by sending DHR an application for Flynn’s marker. Alpert told NHJournal Flynn deserves to be recognized for her trailblazing work as a labor activist, civil rights leader, and feminist. 

“Elizabeth Gurley Flynn was a significant figure in American history,” Alpert said.

Alpert and Sargent’s application included signatures from 30 residents and proposed wording for the marker. Their text appears unchanged on the sign that went up on May 1. Dixon took that application and text to Concord and walked it through the process to get the city’s approval.

Kretovic said it is important that the marker recognizes Flynn’s membership in the Communist Party and her conviction in 1951 for fomenting the violent overthrow of the government. Kretovic would have preferred if the state included an option for people to learn more about Flynn and Communism, such as a QR code people could scan into their phones for relevant factual links.

Flynn was born in 1890 in Concord and became a socialist activist in her teens. She was a founding member of the American Civil Liberties Union and, in 1936, joined the Community Party, becoming the U.S. Party Chair in 1961.

Her decision to join the Communist Party during the period of Josef Stalin’s deadly purge and high-profile show trials is particularly disturbing. In fact, her membership in the party got her expelled from the ACLU in 1940. A decade later, she was found guilty under the Smith Act of advocating the overthrow of the U.S. government by force and violence. The Soviet government gave Flynn a state funeral in Red Square, with more than 25,000 people attending.

When Flynn joined the Communist Party in 1936, the Soviets had already murdered close to 9 million people in Ukraine and other territories in what is now known as the Holodomor. Another 1.2 million were about to be killed in Stalin’s great purge.

If the Sununu administration or the City of Concord does not act, the New Hampshire legislature is standing by.

“If the department does not remove this sign, I will sponsor legislation to do so,” said Rep. Ross Berry (R-Manchester). “We don’t honor Communists in New Hampshire.”

State Rep. Stacie Laughton (D-Nashua) will remain in jail as her attorney negotiates a plea agreement in the criminal case alleging she serially harassed a Hudson woman. 

Laughton, New Hampshire’s first elected transgender state representative, is not leaving Valley Street Jail in Manchester until at least Dec. 22, the date of her next hearing. Her attorney, Elliot Friedman, told Judge John Curran he hoped to have a resolution to the numerous criminal charges worked out with prosecutors in the coming weeks.

“We are negotiating a resolution,” Friedman said.

Laughton’s continued custody complicates Democratic hopes of wresting control of the House of Representatives from the GOP. With a razor-thin 201-198 GOP majority in the House, control of the body and the outcome of the secretary of state election on Organization Day (December 7) will come down to attendance.

Laughton is accused of repeatedly violating orders to leave a Hudson woman alone as well as charges of stalking, criminal defamation, and making false 911 calls. Laughton is already facing jail time after she pleaded no contest this summer to charges of making false 911 calls about the same victim. Prosecutors have told the court they plan to ask for the imposition of the suspended nine-month sentence brought in that case.

Laughton is being held without bail on the grounds she presents an ongoing danger to the community and the alleged victim. She was under court orders to leave the woman alone when she allegedly continued her campaign of harassment that stretches back to 2019.

Laughton’s status hearing, held in the Nashua District Court on Thursday, left the troubled state representative in jail pending the plea negotiations. Laughton appeared in court via video feed from Valley Street Jail. Laughton offered little comment during the brief hearing other than to object to the presence of media in the courtroom.

“I object to the press,” Laughton told Curran. “I will give interviews, but I figure right now this is a personal matter I need to deal with without the pressures of the press.”

Curran denied her objection, stating there is no reason to keep the press out of an open court proceeding.

Laughton could technically still travel to Concord for Organization Day, legislative sources said. New Hampshire’s Constitution bars police from stopping representatives from attending sessions at the State House. The question is, how badly do Democrats want her there?

Democratic Caucus leader, progressive Rep. Matt Wilhelm (D-Manchester), declined to respond to repeated requests for comment.

Laughton’s disturbed behavior has been apparent for years before she won office as a state representative in 2020. She was convicted in 2008 of credit card fraud for stealing from a person in Laconia. Laughton was then charged in 2015 for calling in a bomb threat at the Southern New Hampshire Medical Center hospital in Nashua. Those charges were later dropped as Laughton claimed she was suffering from a mental health crisis at the time.

Laughton won a seat for state representative in 2012 but was forced to resign soon after her 2008 credit card fraud arrest became public. Despite pressure from the Democratic Party, Laughton tried to run again to fill the seat in a special election after her resignation; that bid was cut short when it was deemed she was legally ineligible for office at the time since she was still technically serving her suspended sentence for the felony credit card fraud case.

With control of the State House down to a razor-thin margin, Secretary of State Dave Scanlan announced Thursday he plans to look again at one of the already recounted races, potentially returning a seat to the GOP.

On Monday, Democratic hopes of winning control of the House of Representatives were boosted when a recount of Hillsborough District 16, Manchester’s Ward 6, appeared to show incumbent Republican Larry Gagne lost 22 votes, handing a one-vote victory to challenger Maxine Mosley.

Almost immediately, however, Republicans suspected an error had occurred. Vote changes of more than a handful of ballots are rare. Rarer still are candidates losing votes in a recount. Scanlan, a veteran of many recounts, also took note of the unusual numbers.

“It’s unusual if it changes by more than 10 or 11 votes,” he told NHJournal.

Thanks to an audit of the district, it became clear that some 20 to 25 ballots were missed during Monday’s recount, bringing into question the results. Scanlan released a letter Thursday explaining the situation.

“Ballot counting will be continued in Hillsborough County state representative District 16 recount. The routine reconciliation process indicated that reconciliation and recount number were not equivalent,” the statement read. “The total number of ballots cast and counted for the office of governor in this district is greater than the total accounted for so far for the [Gagne v. Mosley] race. This indicates some ballots have not yet been counted in the recount.

“As a result, the process of recounting the ballots cast in that race will now continue on Monday, November 21, at 4 p.m.”

Republican House members told NHJournal they are pleased, but not surprised, by the decision. And they are very confident Gagne will ultimately hold the seat based on his original 1,820 to 1,797 margin.

“Every vote matters and should be counted. Anyone afraid to finish the recount should be questioned as to what they are afraid of finding,” said Rep. Ross Berry (R-Manchester). “This is a direct result of Republicans demanding transparency in our elections, and I look forward to bringing more sunshine into our voting process. The voters I represent in Ward 6 have a right to know all of their votes will be counted.”

There have been 17 recounts thus far, with a total of 29 currently scheduled, in the wake of last week’s midterms. Scanlan said it was a difficult decision to reopen the recount given the heightened scrutiny of the election process. But his office has more data available this year than in past years thanks to increased efforts to make sure the election results are accurate.

“It’s important that we get everything right,” Scanlan said.

The secretary of state has also created the Special Committee on Voter Confidence to examine concerns about election integrity in the state. While the committee has not found any evidence of widespread voter fraud, its final report has yet to be released.

Republicans currently have a one-seat majority in the House. A race in Rochester is tied. As a result, a Gagne win would be a significant development in determining control of the lower chamber.

Some candidates, mostly Republicans, requested recounts in races where they trailed by more than 100 votes, and it is extremely unlikely those outcomes will change during a recount. 

Manchester’s Ward 6 race isn’t the only one getting another look. Scanlan also announced 27 absentee ballots found in the Rockingham District 6 race could change the results. Democrat Eric Turer beat Republican Melissa Litchfield 1,213 to 1,198, a difference of 15 votes. However, an audit of that race found 27 absentee ballots were not counted on election night or during the recount this week.

Scanlan is asking the New Hampshire Ballot Law Commission to order the 27 absentee ballots be counted and made part of the total.

It is a situation that echoes the 2020 election fiasco in Bedford, where election officials failed to count 190 absentee ballots and then attempted to hide their mistake from the general public.

The November elections are shaping up to be a tough slog for Democrats in the New Hampshire House, and when they’re over, the caucus will have another battle brewing. Both Rep. Matt Wilhelm, (D-Manchester) and Rep. Steve Shurtleff, (D-Penacook) have announced they plan to run for House Democratic leader.

It is a contest that could once again crack the brittle facade covering tensions between the caucus’s disgruntled progressives and establishment members who currently hold the upper hand.

Shurtleff, a former Speaker of the House, is solidly aligned with his party’s establishment wing.

Wilhelm is not part of the hardcore progressive group, perhaps best represented by outgoing member Rep. Manny Espitia, but he is closer to them than Shurtleff. Wilhelm also has the advantage of handling the money members are counting on to help win re-election. He heads the New Hampshire Democratic Victory Campaign Committee, and he has also been named a NewDEAL Leader by the national pro-growth, progressive NewDEAL network. It is a group that includes Georgia gubernatorial candidate Stacy Abrams, Wisconsin Senate candidate Lt. Gov. Mandela Barnes, Sen. Cory Booker (D-N.J.), and Transportation Secretary Pete Buttigieg.

Shurtleff was waiting in the wings to take over for the liberal Renny Cushing (D-Hampton) as he battled cancer. Cushing died in March from complications of cancer and COVID-19. But his ascent was blocked by progressives who kept him from taking even temporary leadership of the caucus. 

Instead, Nashua’s Rep. David Cote took over as Minority Leader, despite the fact he hadn’t been to Concord in years due to fears of COVID.

Shurtleff announced his candidacy via Twitter on Wednesday. Wilhelm announced his earlier this month. “I would like to publicly announce my candidacy for the next Speaker of the House. Tough times demand tough leadership. I would appreciate your support,” Shurtleff wrote.

Shurtleff’s announcement inspired immediate pushback from outgoing and outspoken Rep. Sherry Frost, (D-Dover.)

“Define ‘tough leadership’ please, because what I saw (and heard, from you) was that you saw your job as ‘protecting the minority’ when you were last Speaker,” Frost tweeted in response.

When contacted by NHJournal, Frost declined to clarify her statement saying she is not running for reelection. She refused to answer if she thought Shurtleff was the right person for the job, or who she would support in his stead.

“I would hope that my remaining colleagues would choose someone who understands and is comfortable with legislative strategy and has no patience for nonsense at the well,” Frost wrote. 

This is Wilhelm’s second run for House leadership. He put his hat in the ring ahead of the 2021 session, saying New Hampshire Democrats needed to change their message after losing control of the legislature even as Joe Biden was winning the state by nearly eight points. 

“After the setbacks of early November, we would be remiss if we did not re-examine our strategy and tactics for how we govern, how we campaign, and how we communicate with the working families of New Hampshire and those who feel like they don’t have a voice,” Wilhelm wrote in a letter to his House colleagues.

Shurtleff earned Cushing’s ire in the lead-up to the leadership election for the 2018 House session. Cushing accused Shurtleff of gaming the date of the party caucus in order to shut out potential rivals.

“As a loyal Democrat, it saddens me to realize that while the Republicans are having a robust contest to see who will emerge as the majority party’s candidate for Speaker, the incumbent leadership of the minority party apparently doesn’t feel the need to, or doesn’t want to, involve rank and file Democrats in the decision about who will be the party’s Speaker candidate and what policies, program and vision that nominee will bring to the contest,” Cushing wrote.

Women in New Hampshire’s GOP are getting a boost from the Republican State Leadership Committee, a national organization throwing its support behind women candidates in State House races up and down the ballot. 

“The RSLC is encouraged to see so many women candidates running in state legislative races who will effectively represent their communities in Concord and advance commonsense policies to counteract Joe Biden’s failed agenda,” said RSLC National Press Secretary Stephanie Rivera.

The RSLC has so far spent $500,000 to help send women and others to Concord this election cycle. According to Rivera, 27 percent of the Republicans running for the House this year are women, as are 26 percent of the GOP Senate candidates. Betting on Republican women is a safe wager, she said.

“In the State House, 51 percent of Republican women who ran in 2020 won their campaigns. In the Senate, Republican women had a 55 percent success rate,” she said.

According to Rivera, the RSLC’s Right Leaders Network is leading the effort to grow the Republican Party through the RSLC’s Right Women Right Now and Future Majority Project initiatives. The committee is focused on recruiting, training, supporting, and electing thousands of diverse state Republicans across the country.

New Hampshire is a key state for both Republicans and Democrats, as the national parties are looking to gain a foothold in state legislature races. The Democratic Legislative Campaign Committee (DLCC) is targeting legislatures in New Hampshire, Michigan, and Minnesota, pumping money and resources in an effort to turn all three state legislatures blue.

“We know what we’re up against, but we are making a play to undercut GOP power in the Michigan House and Senate, the Minnesota Senate, and the New Hampshire House and Senate,” DLCC President Jessica Post said on a conference call with reporters Tuesday.

It makes sense for the national GOP to invest in New Hampshire races, according to Rivera, as the GOP leadership in Concord has proven successful in handling the economy and the COVID-19 pandemic, and voters are looking to continue that success.

“New Hampshire has the best economy in the New England region and the second lowest unemployment rate in the country because the Republican-controlled Legislature has made the economy a top priority by passing a historic state budget that includes $171 million in tax relief for working families and small businesses, cuts taxes for retirees, and reduces property taxes by $100 million to provide relief. This diverse slate of candidates will help Republicans hold both chambers in the Granite State to continue this record of success,” Rivera said.

Democrats have been leaning heavily on abortion as an issue to motivate their base. They’re spending big money on ads attacking GOP Gov. Chris Sununu for signing a law that bans abortion after 24 weeks, or six months, of pregnancy. Sununu’s challenger, Sen. Tom Sherman, D-Rye, is using abortion as a major campaign plank, arguing against any restrictions on abortion.

“I would want to put in place Roe v. Wade in the state of New Hampshire,” Sherman said. “New Hampshire does not want the state in between a doctor and a patient, especially on such an intensely private issue.”

The issue may play with well Democratic donors, but not even New Hampshire Democrats support unrestricted abortion through all nine months of pregnancy. A St. Anslem College poll taken in August found about a quarter of Granite State Democrats support some limits on abortion, as do about 70 percent of the general population.

Rivera said New Hampshire voters, especially women voters, see the GOP as having the answer to issues like out-of-control inflation, soaring energy costs, and the price of food.

“Just like all voters in New Hampshire, women are pleased with the job being done by the Republican trifecta in Concord to push back against Joe Biden’s inflation with tax cuts that put more money in the pockets of working families,” Rivera said.

Granite Staters may think Concord is a center of chaos and conflict, but a new report finds it’s the safest state capital in the country — and the most liveable capital city in New England.

The data analysts at WalletHub released its latest rankings on Monday. Concord came in sixth in the nation for overall livability, thanks in part to having the lowest crime rate of any capital city in the U.S. Austin, Texas, Raleigh, N.C., and Madison, Wisc. made up the top three.

“It scored well in terms of affordability, as it has the third-highest median household income, over $68,000. Looking at the capital’s economic well-being, we found that it has the third-lowest share of the population living in poverty, just 9 percent, the lowest unemployment rate, 2.2 percent, as well as a low bankruptcy rate,” added WalletHub’s Jill Gonzalez.

Concord finished ahead of Montpelier, Vt. (18) and well ahead of Boston, Mass. (23). The remaining New England capitols all finished in the bottom 10: Providence, R.I. (41), Augusta, Maine (44), and Hartford, Conn. (48).

Concord’s positives are no secret to Granite Staters like state Rep. Safiya Wazir (D). Wazir’s family fled Taliban rule in Afghanistan when she was a child and she is proud to call Concord her new home.

“Concord is a great place to raise a family and offers a variety of quality educational opportunities for children and adults,” she said. “Concord was a welcoming place when my family and I arrived as refugees, a place we could live and thrive, contribute to, and form strong connections and a deep sense of community.”

WalletHub’s analysts looked at key indicators like affordability as well as safety and quality of life when determining the rankings, according to Gonzalez.

“Other factors that are an indication for Concord’s quality of life include the large share of adults in good health, almost 87 percent, the large number of movie theaters, its air quality, low crime rate and an overall high perception of safety,” she said.

Concord typically ranks in the top 10 on WalletHub’s annual list, thanks to its strong economic base, low crime rate, and other attributes. Concord ranks 4th in overall affordability, 17th in economic well-being, and 14th in quality of education and health. It has the lowest crime rate of all the capital cities, and it is tied for 1st in having the lowest unemployment rate for capital cities. Concord is also third in terms of having the lowest poverty rate. 

Trenton, N.J. ranks worst in the country among capital cities, narrowly edging out Joe Biden’s home state capital of Dover, Del. Little Rock, Ark. has the highest crime rate, while Trenton has the highest poverty rate and the worst rate for education. Hartford has the highest unemployment rate, and Boston ranks as the least affordable. 

Granite State cities are no strangers to accolades like this. Nashua topped the 2019 list of best cities put out by Money Magazine, and it came in the top ten in this year’s WalletHub list of best cities for employment.

A federal judge shot down Democrats’ attempt to force New Hampshire House GOP leadership to allow remote participation in the upcoming session scheduled to begin Wednesday.

“The court concludes that the Speaker is immune from plaintiffs’ suit challenging his enforcement of a House rule that is closely related to core legislative functions,” Judge Landya McCafferty said in her 17-page order dismissing the Democrats’ request for injunctive relief.

Managing the risks of COVID-19 is a tough challenge for the 400-member House, the third-largest legislative body in the world. (Only the U.S. Congress [435] and the British House of Commons [650] are larger.)

Speaker Sherm Packard and his office previously denied requests to allow remote attendance, instead offering a square-footage solution. Wednesday’s session will occur in a 50,000 square-foot venue in Bedford, allowing far more than the CDC-recommended guidelines for social distancing among House members.

Even though former Democratic Speaker Steve Shurtleff used the same strategy a few months ago without objection, Democrats sued this time.

Led by House Minority Leader Renny Cushing of Hampton, they claimed the set-up violated the Americans with Disabilities Act. Before Judge Landya McCafferty on Friday, they argued Speaker Packard did not have legislative immunity, which would free the court to rule in their favor.

Judge McCafferty disagreed.

In the court’s ruling, McCafferty reiterated the House has met in-person since the onset of the pandemic and laid out the number of votes taken that would have allowed remote attendance, all of which failed. Lawyers for Speaker Packard repeated that point at last Friday’s hearing.

NH Sportsplex in Bedford

“We’re being sued because the vote [to allow remote participation in session] failed,” attorney Anthony Galdieri argued, an opinion the judge affirmed in the ruling.

Mason’s Manual of Legislative Procedure strictly prohibits remote sessions without a House Rule or Constitutional Amendment allowing it, neither of which exist in New Hampshire.

“All this ruling means is that the Speaker is solely to blame for active and obvious exclusion of members of the House,” Cushing said in a statement following the judge’s order.

“Unfortunately, this case has exposed the callous indifference of House Republican leadership toward our most vulnerable members during the COVID-19 crisis that has taken the lives of a half a million Americans,” Cushing wrote. The Hampton Democrat says he still plans to attend in-person this week, despite his ongoing cancer battle. He encouraged the members of his caucus to make their own risk assessments.

On Organization Day in December, the first session after their party lost power, more than 118 Democrats chose not to attend. In January, that number was down to a few dozen.

Speaker Packard insists this week’s sessions will be safe. “We will continue to work with all House members to ensure that if they choose to attend any legislative meeting in person, that they can be confident that we are taking a high degree of precaution, and have extensive health and safety measures in place.”

Among safety precautions implemented by the Republican Speaker are 10 to 12 feet of social distancing between members, separate entrances for Democrats and Republicans (as many GOP representatives have been known to attend maskless), separate restrooms for maskless members, and a mask mandate for all non-members.