#

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.

Democrats are vowing to keep up the fight over COVID-19 restrictions at the State House even as more voters are ready for an end to pandemic living.

On Monday, the First Circuit Court of Appeals in Boston denied New Hampshire Democrats an injunction against House Speaker Sherman Packard (R-Londonderry). Democrats have been pushing for Packard to allow for remote attendance for legislators. House Minority Leader Rep. David Cote (D-Nashua) responded by saying he would continue the remote legislation lawsuit.

“While we are disappointed that the First Circuit denied our request for a preliminary injunction, it is important to note that the court did not rule that disabled people must risk death to serve in the legislature and represent their constituents. The court’s decision only related to a preliminary injunction, not the Speaker’s denial of minimal accommodations for representatives with disabilities,” Cote said in a statement.

Cote, 61, lives with cerebral palsy and has not been to Concord for a vote in more than two years. He did not respond to a request for comment on Monday.

Packard successfully argued that as Speaker he enjoys “legislative immunity” and is exempt from following the Americans with Disabilities Act, and therefore the injunction fails.

“This opinion reaffirms the importance of the integrity of the legislature and the legislative process. 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,” Packard said in a statement.

Spencer Kimball, an associate professor at Emerson College and the director of the school’s polling center, said the politics of the pandemic have shifted away from favoring Democrats as the virus has become less threatening.

“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.

The COVID-19 virus seems to be in retreat, with cases and hospitalizations dropping drastically in recent weeks across the country and in New Hampshire.

Earlier this week, state Sen. Tom Sherman, (D-Rye) who is running to unseat Gov. Chris Sununu, was asked if he would impose a mask mandate “on day one” after taking office. “It really depends on the numbers,” Sherman said. “You have to look at what’s called the epidemiology, which is how pervasive is it in the community.

“If the numbers say it is [necessary], then we may need to do that, but that would not be my first response, Sherman added.

Kimball said, with the threat perception changing, COVID restrictions could be a loser for Democrats heading into the midterms.

“Democrats may be overplaying their COVID hand, but if COVID was to increase they may find themselves in a stronger position. Time will tell,” Kimball said.

In New Hampshire, most adults have some level of protection against COVID-19, according to recent UNH Survey Center data.

“Currently, one-quarter (of adults) say they have tested positive for COVID since the pandemic began. Six in 10 adults say they are vaccinated and boosted, another 17 percent are vaccinated but not boosted, and 22 percent are not vaccinated at all. Overall, seven in eight Granite Staters likely have some protection against COVID-19 through vaccination or recent infection,” The UNH data report states. 

David Paleologos, director of Suffolk University Political Research Center, said Democrats need to be alert to parents who are tired of mask mandates and school lockdowns harming their children.

“It’s hard to say whether or not mask advocacy on its own will be a cutting issue in November. More likely is a scenario where Democrats will say mask policies and required vaccinations ultimately saved lives and Republicans will say that mask mandates were an overreach, setting back education a couple of years,” Paleologos said. 

Democrats who align with teachers unions, which have backed stricter COVID restrictions like remote learning and masking, have had a rough time at the ballot box.

“Traditionally, education and healthcare are wheelhouse issues for the Democratic Party. If Republicans chip away at these two pillar issues (like they did in Virginia and New Jersey last fall), Democrats may face some dark November days,” Paleologos said.

Glenn Youngkin took the Virginia governor’s race, in part, because parents were upset with COVID lockdowns. In New Jersey, incumbent Democratic Gov. Phil Murphy barely beat a challenge from Republican Jack Ciattarelli.

Cote took over the leadership after the death of state Rep. Robert “Renny” Cushing (D-Hampton.) Cushing died this month following a two-year battle with prostate cancer. His family told The New York Times Cushing’s death was partially brought on by complications from COVID-19.

Cushing first brought the lawsuit to the federal court and pushed for a ruling on the appeal for the injunction ahead of the current legislative session. Even as he was dealing with cancer treatments, Cushing remained active throughout the pandemic, missing few votes over the last two years. 

House Speaker Dick Hinch (R-Merrimack) died from COVID-19 in 2020 shortly after the first socially distanced House session of the biennium at UNH’s athletic complex.

Everyone knows there are three topics you are not supposed to bring up at a dinner party: Sex, politics, and religion.

If you are having dinner with a New Hampshire House Democrat, add a fourth: The whereabouts of state Rep. David Cote (D-Nashua).

In theory, Cote is the Acting Minority Leader of the House Democratic Caucus. In reality, he has been a no-show since the Trump administration. He has not cast a vote on legislation since March 11, 2020 — two years ago, according to House records. During that period he was the nominal Deputy Democratic leader to Rep. Renny Cushing, who was struggling with stage four cancer the entire time.

Cushing passed away on March 7, and Cote has been — on paper, at least — the caucus leader since.

Cote, 61, represents Ward 4 in Nashua. He has served in the House since 1983. According to court documents filed in an attempt to force the House to allow remote attendance, Cote disclosed he “has had cerebral palsy from birth, so wears leg braces for stability and uses crutches to walk.” He also had a heart attack in 2018.

He claims those health challenges are the reason he has refused to attend a single House session– whether they were held in a parking lot, a sports arena, or the State House.

By contrast, House records indicate Cushing was present at all but a few votes during the 2020 and 2021 House sessions, despite his cancer diagnosis and treatments.

So, where is Cote? And is his absence costing Democrats legislative victories? How do Democrats feel about his no-show leadership style?

The short answer: Don’t ask.

When NHJournal contacted state Rep. Michael Pedersen (D-Nashua) who heads the city’s Democratic Committee, for example, he hung up on the reporter.

When asked if Cote is currently doing his job and representing his constituents, Nashua Ward 4 City Alderman Tom Lopez offered praise for state Rep. Manny Espitia (D-Nashua)  – the other Ward 4 state representative.

“We are lucky to have representatives like Manny Espitia who will stand up to bigotry, bad governance, and moral corruption,” Lopez said. “We need more leaders like Manny.”

Cote declined to respond to repeated requests for comment.

Arnie Arnesen, a liberal talk radio host and N.H. Democratic nominee for governor in 1992, said Cote’s absence is no reason he cannot be an effective leader.

“I haven’t been to my studio in two years. I am still doing six shows a week and providing content commentary and the fact is that leadership does not require a desk and an office. How old school of you?” she said.

When told Cote has not voted in more than two years, Arnesen blamed Republicans for not accommodating requests for remote voting, unfairly keeping Democrats from voting.

“The GOP leadership has exercised voter suppression. Maybe you are writing the wrong story,” she said.

Some members of the House caucus do not agree, though they are unwilling to say so on paper. Asked how Cote was able to lead without being present, one caucus member said simply, “He can’t. He hasn’t. And he won’t.

While the members who spoke to NHJournal have sympathy for Cote’s health conditions, they also say the caucus needs leadership. If Cote can’t do it, a change needs to be made.

“It is irresponsible and unfair to the caucus and the people of New Hampshire,” the source said.