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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.”

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.

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.