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NHDem’s COVID Accommodations Case (Finally) Comes to an End

Despite years of trying to push remote legislating, Granite State Democratic lawmakers must show up to do their jobs.

United States District Court Judge Landya McCafferty this week dismissed the long-running lawsuit against Speaker Sherman Packard (R-Londonderry) over House rules requiring in-person attendance for representatives.

Since the COVID-19 pandemic began, New Hampshire Democrats have aggressively pursued policies to both mandate behavior in the cause of public health and to rewrite rules to accommodate those in fear of the virus. Mask mandates have proven to be largely ineffective in stopping the spread of COVID, and there is little evidence that restricting the behavior of healthy Americans had any benefit on health outcomes.

But that hasn’t stopped Granite State Democrats, who have past three years in court pushing to override House rules requiring in-person attendance to conduct the people’s business.

Packard has maintained the ultimate authority to set the rules lies with the House and not the courts. Judge McCafferty agreed.

“The order speaks for itself,” Packard said in response to the ruling. “It reaffirms our belief there is a democratic process by which the House adopts its rules, and that process is not subject to court intervention.

“Over the last two terms under my administration, we have worked tirelessly to keep legislative business moving forward. My hope is that we continue to work together and make some positive changes to benefit all New Hampshire citizens.”

McCafferty showed deference to Packard’s legal position, which was bolstered by a First Circuit Court of Appeals ruling issued last year. The authority to set attendance rules belongs to the House.

“The court is not unsympathetic to plaintiffs’ legitimate concerns. But it cannot base its decision on whether it agrees with the procedures voted upon by the New Hampshire House of Representatives,” McCafferty said.

Lawmakers have been meeting in person since the start of the 2022 House session, and all votes are done in person. There are remote options to participate in hearings, but that does not include the ability to cast votes remotely.

Democrats sued Packard, claiming he used the attendance rules in order to gain a partisan advantage during the pandemic. Several Democratic lawmakers, like Rep. David Cote (D-Nashua), simply refused to attend House sessions out of fear of the virus. But because Cote continued to run for reelection — and the voters of Nashua reelected him — he “served” without casting a single vote on behalf of his constituents for three years. In fact, he was never even sworn into office after his 2022 reelection. 

Cote eventually resigned in July.

Are State House Dems Plotting to Blow Up the Budget?

Guy Fawkes Day could be coming early to Concord as a contingent of House Democrats is reportedly scheming to blow up the proposed budget in a fight over Medicaid expansion.

Multiple sources tell NHJournal Democrats are toying with some radical plans, including the possibility of using a potential future majority in the evenly-split House to “vacate the speaker’s chair,” giving Speaker Sherman Packard (R-Londonderry) the boot.

Another idea: Strip Medicaid expansion from the House budget by voting on it as a standalone bill, then leave the House GOP to attempt to pass a budget — and fail — without Democratic votes. But since the Medicaid expansion bill has already been retained in committee, the Democrats would have to override the committee process and vote to bring it to the House floor.

The conspiracy talk comes at a time of heightened tension in the budget negotiations between legislators and Gov. Chris Sununu, with one source saying no one knows what is going to happen next.

“If they do any of this, it is total Armageddon,” one GOP House member told NHJournal.

Senate President Jeb Bradley (R-Wolfeboro) shares a similar view, calling the talk he has heard from the Democratic side of the aisle “Washington-style politics at its worst.”

As for a possible Democratic attempt to pull Medicaid expansion out of budget for its own vote, “I think it’s a very dangerous game,” Bradley said during a podcast interview with NHJournal. “It puts at risk the budget and Medicaid expansion at risk.”

Bradley took the lead in the Senate, spearheading SB 263, the Medicaid expansion bill, which extends the state’s Granite Advantage health insurance program. While low-income families qualify for traditional Medicaid, the Granite Advantage program makes Medicaid available to working families who earn too much for Medicaid but don’t have access to affordable health insurance through their employers. And 90 percent of the funding comes from federal dollars.

“My responsibility as I see it is to get the job done for the 50,000 to 60,000 people now depending on Medicaid expansion,” Bradley said. “To say nothing of the providers, the hospitals, the business community, all of the people that have gotten behind this coalition effort for the last nine years.

“Our responsibility, as adults, is to get the job done.”

The original proposal would have permanently expanded health coverage, while some House GOP members wanted to see just a two-year expansion. Bradley has agreed to a compromise plan that extends the benefit for seven years. That is complicated by the fact the budget, HB2, includes a two-year extension to Medicaid.

Packard is seen as a key opponent to the permanent expansion. Now, sources tell NHJournal some Democrats plan to yank Medicaid expansion away from the House Finance Committee and hold a floor vote on a permanent expansion. At the same time, those Democrats are also gearing up to push Packard out of the speaker’s chair.

House Clerk Paul Smith said motions to vacate the speaker’s chair are rare and typically unsuccessful. Any vote to remove Packard would require “50 percent plus one” of the entire body — not just those present. There are 196 Democrats in the House. With several vacancies, the current House membership is 396, meaning Democrats need 199 votes.

House Finance Committee member Rep. Peter Leishman (D-Peterborough) has heard the rumblings about Medicaid expansion, but he said the House conspirators are all talk. He noted that the Finance Committee voted Thursday to retain the bill, locking it into the committee.

“If the bill’s not reported out, they can’t take it away from the Finance Committee,” Leishman added.

But other House sources said an obscure and rarely-used move could allow Democrats to override the committee’s vote to retain. Smith said it would be a highly unusual move.

“Does it usually happen that the House withdraws a bill from committee? No, not usually,” Smith said.

House Majority Leader Jason Osborne (R-Auburn) conceded that, given the tight margins in the House and attendance issues, it’s very possible Democrats could again find themselves with a majority on the floor. If they do and choose to abandon the norms and traditions of the House, they could wreak havoc.

“But the real result would be total Republican unity,” Osborne added. “These things Democrats are talking about would completely unify my caucus.”

In fact, Deputy Speaker Steve Smith now says House leadership is on board with Bradley’s proposed Medicaid expansion deal.

“We’ve heard from the business community, the health care community, and people across New Hampshire about the importance of reauthorizing Medicaid expansion,” Smith said in a statement. “We all agree that the program needs to be reauthorized, and we’ve had a productive conversation about the appropriate length of time for a sunset provision.

“A seven-year extension of the Granite Advantage Healthcare Program makes logical and fiscal sense. New Hampshire gets the financial benefit of a full contract period, a continued drop in uncompensated care costs – which is a hidden tax, and it stabilizes the market allowing for more competition to help further drive down health care costs in our state. House Republican leadership fully supports the budget compromise of seven years. Let’s get it done,” Smith said.

Regardless of how the Medicaid vote goes, former House Speaker Rep. Steve Shurtleff (D-Penacook) said an attempt to force a vote, or worse, depose Packard, is a mistake.

“What we don’t need right now is this kind of gamesmanship,” Shurtleff said. “There’s no need for these kinds of fights.”

Too many people in the state rely on the budget passing, Shurtleff added, and delaying that makes those people the victims in an unnecessary political fight. “The budget is too important to too many people,” he said.

Then there is the question of motive. Given how relatively apolitical the current budget is — no anti-CRT legislation or late-term abortion bans — why would Democrats contemplate such high-risk actions against it? Particular a budget with hefty pay raises for state workers, who tend to be political allies of the Democratic Party?

Several House Republicans told NHJournal they believe the real target is Sununu. If the governor is tied in an ugly budget battle or trying to corral House chaos, it might stop — or at least slow — his presidential plans.

“Or maybe the Democrats are just [expletives],” one GOP House member said.

Blowing up the budget would hurt state employees, people who need affordable housing, families who need childcare, Granite State communities that need water infrastructure repairs, and every homeowner who needs property tax relief, Bradley said.

“I would just say that is the worst possible case scenario because everything could wind up in the tank,” Bradley said.

Even Democratic stalwart Sen. Lou D’Allesandro (D-Manchester), who voted against the budget last week, wants the spending plan to pass. D’Allesandro and Sen. Cindy Rosenwald (D-Nashua) voted against HB2 in the Senate Finance Committee, saying they want improvements to the final bill before they support it.

“There’s an opportunity to add a couple of things to the budget,” D’Allesandro said.

D’Allesandro wants to see more money for state employee pensions, more money for affordable housing, and no money for northern border security. He said that as long as the bill remains intact and the House remains sane, there will be another opportunity to vote on the budget after more negotiations. That includes negotiating more time for Medicaid expansion.

The specter of a messy fight over Packard’s speakership is a non-starter for D’Allesandro. Packard is doing a solid job leading a closely divided House, he said.

“Sherman Packard was my student when he was in high school. I think the world of Sherman; he’s a fine man.”

Likewise, Leishman does not think Packard should be pushed out.

“I think Sherm’s done a good job trying to hold things together,” Leishman said.

Offer of Free Air Fare Sparks Investigation Into Dem Tactics in Parents Rights Fight

New Hampshire House Speaker Sherm Packard (R-Londonderry) has ordered an investigation into tactics being used by House Democrats to pressure members over Thursday’s vote on parental rights legislation. Some of those tactics, including offering to pay for a member’s plane ticket for a flight from Florida, appear to violate House rules and, possibly, state law.

“We are looking into the matter, and we are concerned about the appearance of impropriety. Should there be evidence of a statutory or ethical violation, it will be referred to the appropriate enforcement authority,” Packard’s office said in a statement. 

At the center of the controversy is SB272, also known as the Parents Bill of Rights, which would force some public schools to end their current policy of refusing to answer parents’ questions about their children’s behavior regarding sex and gender.

“It says that schools and school employees cannot lie to parents,” said state Sen. Tim Lang (R-Sanbornton) when the bill passed the upper chamber in a 14-10 vote.

Now the bill is coming to the House, setting off a round of fear and loathing in Concord with Democrats offering carrots (in the form of a free plane ticket) and sticks: threatening a primary challenge if a House member supports the parents’ rights bill or fails to show up for the vote.

When Rep. Robin Vogt (D-Portsmouth) took to Twitter to say he was on a long-planned family vacation and won’t be in Concord to vote against SB272, Granite State progressives responded angrily.

“There is no one who supports a work/life balance more than me — but real allies show up,” tweeted Monica Venzke, until recently a spokesperson for the state Democratic Party. “Session ends in June. When you were elected, you knew that. These are the responsibilities you take on as a legislator; clearly, you cannot handle them.”

And progressive activist Linds Jakows told Vogt he had no excuse to miss Thursday’s session, as money is available to fly him back to New Hampshire in time to vote.

“No. It is a luxury to actively choose to be in Florida for nearly a week now when there are funds to fly you to New Hampshire and back,” Jakows wrote to Vogt in a now-deleted tweet.

Jakows is head of 603Equality, an LGBTQ nonprofit which is not registered as a lobbyist with the New Hampshire Secretary of State’s Office, and it appears she’s offering something of value to a lawmaker to encourage him to vote. Not surprisingly, 603Equality’s behavior sparked concerns.

“I am outraged that an unregistered Democrat lobbying organization would offer to fund travel expenses for a legislator in order to influence the outcome of a vote,” said House Majority Leader Jason Osborne (R-Auburn). “The ease at which this was offered leads us to believe that offers like Jakows’ seem to be the norm on the other side of the aisle.

“This is an example of Washington-style politics at its worst and does not represent Granite State values,” Osborne added.

It could also be a crime. Legal sources pointed NHJournal to New Hampshire’s criminal codes 640:2 “Bribery in Official and Political Matters;” and 640:5 “Gifts to Public Servants.”

Jakows declined to respond to questions from NHJournal regarding the source of these “funds” to pay for legislators’ travel or whether other lawmakers are getting funding as well. In a follow-up tweet, Jakows claimed a group of concerned community members was crowdfunding the money, though Jakows would not say who those people were.

“How many members of the New Hampshire House Democrats will be there tomorrow to vote against parental rights because a lobbying group paid for them to be there?” asked Rep. Ross Berry (R-Manchester). “Probably worth finding out.”

Thus far, the New Hampshire Attorney General’s Office is staying out of the drama, saying Wednesday it is currently a matter of the Speaker’s Office.

Meanwhile, House Democrats are also being threatened by a representative of one of the state’s largest teacher’s unions, who warned not showing up or voting the wrong way could result in a primary challenge.

“ANY @NHSenateDems and @NHHouseDems who do not make a point to show up to vote NO on #SB272 and stand UP for young #queer lives on the line do not deserve our support,” tweeted Ryan Richman, vice president of the state chapter of the American Federation of Teachers. “Especially if they primaried out @NHDems that showed up to protect Granite Staters from evil.”

Vogt pushed out long-time Democratic Rep. Jacqueline Cali-Pitts in last year’s Democratic primary and won favor with the AFT. The union endorsed him in the general election.

Vogt now faces the prospect of being pushed to take dark money plane tickets, which may or may not be legal, and could be made an example of by his union benefactors and see his political career cut short.

What is unique about Vogt’s drama is the public display of the pressure brought to bear on one representative, leaving voters to guess how many other representatives were being threatened and offered financial benefits behind closed doors. Or at least off Twitter.

Vogt, still vacationing, did not respond to a request for comment.

SCOTUS Rejects Dems Last-Gasp Attempt to Force COVID Restrictions on State House

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.”

Despite Court Ruling, House Dems to Keep Fighting For COVID Exceptions

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.

With Cushing’s Passing, Who Will Lead House Dem Caucus?

CONCORD — New Hampshire Democrats face a difficult dilemma in the wake of the death of House Minority Leader Renny Cushing: Fight or flight?

Do Democrats hold a vote to pick a new leader, which would almost certainly lead to a divisive leadership fight; or do they stick with acting Minority Leader Rep. David Cote (D-Nashua) and ride out the rest of the session?

What most voters probably don’t realize is that by state law, Democrats do not get to pick their leader. Under New Hampshire’s Constitution, the authority to name the leaders for both parties rests not with the party caucuses, but with Speaker of the House Sherman Packard (R-Londonderry).

“Technically, it’s up to the Speaker,” said Secretary of State David Scanlan. “But how we get there is up to the Democrats.”

Democrats can vote for a leader, but the choice has to go through the Speaker of the House. 

“The minority caucus has to determine what they are going to do,” said Clerk of the House Paul Smith. “But there’s nothing in the rules that [says] the Speaker has to name anyone to anything.”

When Republicans lost their leader, Rep. Dick Hinch, to a COVID-related illness just over a year ago, they didn’t face this situation because he was Speaker. The position is elected by the entire House and there are clear rules in the Constitution and state law about picking a replacement.

“Within 30 days after a vacancy occurs in the office of president of the Senate or speaker of the House of Representatives, the Senate or House of Representatives, as the case may be, shall select a successor from among its members.”

Smith said when there has been a death of a party’s leader in the past, the party has chosen to keep the acting leader in place for the remainder of the session. Given there are just a couple of months left in the current legislative session, Smith said Democrats could keep Cote in place for the time being.

Packard was not available for comment on Tuesday, and Cote did not respond to a request for comment. 

Former House Speaker Shawn Jasper said he could not recall any past Speaker ignoring the wishes of either party when it comes to picking leadership.

“(The Speakers)  just can’t do that on their own,” he said.

While Democrats could keep Cote in place, Jasper said, much legislative work remains to be done in Concord and the party might want to hold a leadership vote.

“What complicates the matter here is that (Cote) has not been coming to the State House. It will be very difficult for him to be effective for the next couple of months. He needs to be on-site,” Jasper said.

According to multiple sources inside the Democratic caucus, Cote is “terrified of COVID,” and as a result has refused to attend any in-person gatherings.

“You can’t run the caucus from your basement,” one concerned Democrat told NHJournal.

Greg Moore, who served as the chief of staff for the New Hampshire House of Representatives, said it has been a difficult couple of years, with both parties losing their leaders.

“It’s been a tough legislative session for the House,” Moore said.

Moore thinks Democrats are likely to hold a leadership vote in the coming weeks. Cushing was well-liked on both sides of the aisle, and he had the ability to lead. That is something Democrats will miss.

“When you lose your leader, you want to have somebody who has the force of the vote,” Moore said. “That gives the caucus a lot of confidence.”

If there is a caucus in the coming weeks, Moore said the candidates who ran against Cushing last time are likely to be top contenders. Rep. Matt Wilhelm (D-Manchester) and Rep. Marjorie Smith (D-Durham), who both challenged Cushing for the Minority Leader post, did not respond to requests for comment.

Moore said the ultimate decision will be made by the members.

“It’s up to the caucus what they want to do,” Moore said.