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With the state riveted by the tragic and gruesome details coming out in the Harmony Montgomery murder trial, a child who was failed by the Division of Children, Youth & Families (DCYF), a new legislative special committee is getting started.

But the House Special Committee on the Division for Children, Youth and Families, announced Wednesday by Speaker Sherman Packard (R-Londonderry), isn’t looking at how to better protect children like Harmony who’ve fallen through the cracks. Instead, according to an announcement from the speaker’s office, the bipartisan committee “is charged with considering all matters on due process and practices concerning DCYF.”

The news creates a jarring juxtaposition with the news from the Manchester courtroom where Adam Montgomery is on trial for allegedly murdering his 5-year-old daughter, Harmony, and then hiding her body for months before he threw out her remains. It’s a terrible story that might have played out differently, critics say, if DCYF child protective policies had been more assertive.

Adam Montgomery’s uncle, Kevin Montgomery, called DCYF in July 2019 to report Harmony had been assaulted. According to testimony at the trial, Adam Montgomery gave his child a back eye so severe it changed the profile of her face.

“I beat the dog sh*t out of her,” Adam Montgomery allegedly told his uncle.

Former Child Protection staffer Demetrios Tsaros was assigned to investigate the abuse report, and he testified this week he went out to the Manchester home to make contact on July 29. As he was getting to the home, Tsaros said he saw Adam Montgomery and Harmony get into a car and drive away.

Tsaros guessed he was 30 to 40 feet away from Adam Montgomery and Harmony when he saw them for a matter of seconds.

Tsaros was able to get Adam Montgomery on the phone three days later and set up an appointment to see the girl a week out, Tsaros testified. Adam Montgomery claimed the children in the home were sick and could not be seen on Aug. 1.

By the time Tsaros was finally in the same room as Harmony, it was Aug. 7, and she had no black eye. Tsaros testified the girl had a red mark on her face and some redness in one of her eyes. Adam Montgomery claims the eye injury was from a play-related accident with her step-brothers.

Adam Montgomery is accused of beating Harmony to death months later, on Dec. 7, 2019. Tsaros ended up leaving DCYF in 2021 and is now a postal worker.

The new committee chair, Rep. Leah Cushman (R-Weare), has long championed parents who claim their constitutional rights were violated by DCYF. Last year, she solicited stories to help foster that case for the committee.

“Have you or someone you know had your constitutional rights of due process violated by the Department of Children and Family Services?” Cushman wrote on Facebook. “I have received many such anecdotes from the people and would like to help. In order to help, I need your stories.”

Cushman did not respond to calls and a text seeking comment, nor did other members named to the committee, like Rep. Lucy Weber (D-Walpole), Rep. Pat Long (D-Manchester), or Rep. Alicia Gregg (D-Nashua). 

Cushman did provide a written statement in Packard’s press release, in which she does not make any specific allegations that any parents are having their due process rights, or any other rights, violated by DCYF. 

“As representatives, we are here to listen to the issues our constituents face and, when possible, find solutions to mitigate their concerns. In this case, our committee is tasked with the important, non-partisan job of identifying – if any – deficiencies within the DCYF system as it relates to due process,” Cushman stated. “We will make recommendations to correct any deficiencies found, and if there are none, we will clarify that and see what needs to be done to alleviate the concerns raised.”

Packard’s announcement states the committee will hold hearings, gather testimony, and make recommendations for possible legislation.  

House Speaker Sherman Packard said he did nothing wrong in his handling of the case of Troy Merner, the former state House member charged with illegal voting and lying about his residency. And, he told reporters Wednesday, he is done talking about the topic.

Packard (R-Londonderry) met with a small group of reporters to clear the air, set the record straight, and end the discussion about what he did and did not do when he first learned Merner did not live in his Lancaster district.

“We had to let the process play out since it was under investigation by the (New Hampshire Department of Justice,)” Packard said. “I never talked to Troy Merner the whole time about his residency.”

Saying it would be the last time he planned to talk about Merner, Packard often sounded defensive during the meeting with NHPR, the Union Leader, and NHJournal, saying he could not have taken action when his office learned last December that Merner’s residency was under investigation by the New Hampshire Attorney General’s Office.

“Do what? What would you have me do? Get in the middle of an investigation? That could be criminal. Which is what it turned out to be,” Packard said. “If I had gotten involved in it and screwed up the investigation, you guys would probably be jumping all over me for ‘Why did you get involved’… I lose no matter what the hell I do.”

The New Hampshire Attorney General’s Office charged Merner, 63, last month on counts of wrongful voting, theft by deception, and unsworn falsification following its investigation. Merner is scheduled to be arraigned on Thursday, Dec. 28 in Coos County Superior Court. 

Packard’s meeting on Wednesday was an attempt to put an end to the critical news stories that dogged his office since the news broke.

“We tried to put this to bed, and every time we try and put it to bed, somebody puts a report out or something of that nature and blows the whole thing up again,” Packard said.

Packard blamed the media and partisan politics for giving life to the controversy and not anything he did or did not do.

“Would this [interest in the Merner story] have happened if we or the other party had a 50-vote majority? Probably not. Let’s be realistic; there’s a lot of politics involved in this right now,” Packard said.

According to documents so far released in the case, the Attorney General’s Office emailed Terry Pfaff — Chief Operating Officer of the New Hampshire legislature — on Dec. 6, 2022, one day before the House Organization Day. The email alerted House authorities to questions about Merner’s living situation and the ongoing investigation. A Packard staffer contacted Merner soon after receiving that email, and Merner denied he was no longer a Lancaster resident.

At that point, according to Packard, he decided to wait for the attorney general.

“We didn’t jump into any type of investigation; we took the man at his word. We had no reason not to, regardless of what the investigation said, because it wasn’t finished,” Packard said. 

Merner, a member of the Lancaster select board, allegedly moved out of Lancaster before he was elected to the House last November. According to court records, Merner considered his Lancaster office, post office box, and intent to eventually move back enough to establish his residency in the district despite the fact he was actually living in Carroll with his wife.

Deputy Speaker Rep. Steve Smith (R-Charlestown) played wingman to Packard at Wednesday’s press conference, explaining that no one made a formal complaint for Packard to act on and brought proof that Merner was not a Lancaster resident to the speaker.

“Anybody could have brought a complaint, and nobody did,” Smith said.

Without a complaint, Smith said that Packard could not act, adding that the Speaker’s Office does not generally investigate alleged misdeeds, nor does it conduct surveillance on members.

“The Speaker’s Office has a chief of staff, a deputy chief of staff, and … a communications director. We’re not going to deploy them to stake people out,” Smith said. “We don’t have staff or resources for that based on a rumor.”

Merner finally resigned from the House in September aw the attorney general’s investigation neared conclusion. At that point, the Department of Justice provided Packard with proof Merner was not a Lancaster resident. Packard followed up on that information by pushing Merner to step down.

“Once proof was given to us by the DOJ, we acted immediately,” Packard said.

Even if Packard got involved, past House precedent showed nothing would have happened, Packard and Smith argued. They pointed to a similar controversy from 1990, when it was learned Democratic Rep. Cynthia McGovern did not live in her Portsmouth district but instead lived in Hampton. 

Then-Speaker Steve Shurtleff (D-Penacook) appointed a committee to investigate McGovern’s residency, which took years to bring a resolution ousting McGovern to the floor. Despite it being a clear case of a representative living outside their district, the House voted down a 1992 resolution to boot McGovern from her seat.

“If we did investigate, what would have happened? It would have been really hard to find any conclusion other than the 1992 committee report that saw something just like this,” Smith said.

Is Packard worried about accusations from Democrats that he mishandled the Merner situation or the impact of this incident on his speakership going forward?

“I’ve been in politics a long time. I can’t control what everybody thinks,” Packard said.

House Speaker Sherman Packard (R-Londonderry) said Republican Rep. Troy Merner lied to him when confronted about his residency last year.

Feeling heat from Democrats after state Attorney General John Formella announced voter fraud and theft charges on Tuesday against Merner, Packard issued a statement Wednesday laying out his version of the controversy.

Packard acknowledged the Department of Justice told his office last December that Merner was accused of living outside his Lancaster, N.H. district. But Packard said he did not have verified information and could not take action. According to Packard’s statement, the Speaker’s Office conducted an investigation that stalled when Merner continued to lie about his residence.

“Upon being informed of the DOJ communication, the Speaker’s Office initiated a review of the matter, which included calling and interviewing Merner to confront him about the allegations in the Department of Justice communication,” Packard said.

“At that time, Merner continued to attest that his domicile was in Lancaster at the apartment he rented on Elm Street. The review did not obtain any new information other than what was contained in the information the Department of Justice provided; therefore, the matter was considered inconclusive pending further investigation/findings by the Department of Justice or other findings that may come through other processes or sources.”

Democrats said House Republican leaders, clinging to a 201-198 majority, didn’t want to know the truth about Merner.

“Given the closely divided partisan makeup of the House this term, it is of grave concern that Rep. Merner’s residency violations were overlooked both in Lancaster and in Concord while he continued to hold elected office,” House Democratic Leader Rep. Matt Wilhelm (D-Manchester) said in a statement.

Merner was elected to represent Lancaster, Dalton, North Umberland, and Stratford in November, months after he moved out of the district and sold his Lancaster home. The Attorney General’s Office received a complaint about Merner from a Lancaster resident a week after the November election and sent an investigator to speak to the representative.

Investigator Anna Brewer-Croteau found Merner living in a home in the town of Carroll, well outside his district. Wearing boxers and a t-shirt and eating cereal, Merner acknowledged to the investigator that he lived outside the district.

In the affidavit released Tuesday by Formella’s office, Merner maintained an office in town and slept there “multiple nights a week.” He followed that up by claiming other people do the same thing.

“(Merner) told (Brewer-Croteau) that he knows of other people who vote in Lancaster and are not domiciled there. (Merner) denied to identify these people,” the affidavit states.

As well as being Lancaster’s state representative, Merner also served on the town’s Board of Selectmen. He told Brewer-Croteau he had no plans to run for reelection.

Brewer-Croteau’s report was conveyed to General Court Chief Operating Officer Terry Pfaff on Dec. 6, 2o22.

Packard insisted he and his fellow GOP leaders in the House didn’t have enough to go on at the time.

“The information was not conclusive in nature and made no final determination about Merner’s domicile. The information also contained Merner’s account that the allegations were unfounded and that the investigation was ongoing,” Packard said.

Packard claimed he never got an official complaint about Merner’s living situation, nor did he get any confirmation from Formella about Merner’s residency until September. Throughout Merner’s time in the House, he submitted mileage reimbursement forms for his Lancaster address and maintained official ties to Lancaster. 

“He continued to serve on the Lancaster Board of Selectmen, which further legitimized his attestations,” Packard said.

After Merner was caught voting in the March 2023 Lancaster election, Formella’s office started asking about Merner’s office. During that investigation, it was learned that Merner did not, in fact, sleep at his Lancaster office multiple times a week. According to the affidavit, neighbors told investigators he did not sleep there at all. 

Packard never got a formal notice about the March voting complaint, nor did he get one about Merner’s admission in May that he did not live in Lancaster. However, once Formella’s investigation wrapped up, Packard said he took immediate steps to deal with Merner.

“When the Speaker’s Office was made aware of the conclusions made by the Department of Justice in September 2023, rapid action was taken to force Merner to vacate his seat,” Packard said.

Merner resigned from the Lancaster Select Board in October. He is charged with wrongful voting, a class B felony carrying a sentence of up to 7 years in prison and a fine of up to $4,000, and multiple other charges.

Merner is due to be arraigned on Dec. 28.

Maybe Republican former state Rep. Troy Merner should not have answered the door in his underwear when an investigator from the New Hampshire Attorney General’s Office knocked at the Carroll home where he lives.

Maybe he should have resigned from his elected positions when he moved to the home outside his district. Or maybe someone in the State House should have acted when they were alerted about Merner’s residency in December 2022.

That was when top lawyers with the New Hampshire Department of Justice, Myles Matteson and Anne Edwards, called Terry Pfaff, the Chief Operating Officer of the General Court, to inform him of Merner’s living situation, according to records made available Tuesday. House Speaker Sherman Packer (R-Londonderry) acknowledged Tuesday he was informed last December as well.

Merner was allowed to continue to represent the district he no longer lived in for months.

The New Hampshire Attorney General’s Office announced Tuesday it is charging Merner, 63, for wrongful voting, theft by deception, and unsworn falsification. The charges are the next act in a legal drama that started a year ago.

Formella’s office did not make Merner’s residency problem public until this March after it received a complaint that Merner had voted in Lancaster’s municipal election. Merner continued to serve in the House until September, when Formella’s office sent a memo to Packard confirming Merner did not live in Lancaster.

However, according to the records, investigators and attorneys inside Formella’s office knew Merner did not live in Lancaster as early as December of last year.

Packard said in a statement released Tuesday night he was aware of the December call to Pfeff, but Merner disputed that he did not meet the residency requirement. 

“Allegations against Merner were made in December 2022, and the General Court was made aware that Merner disputed and contested those allegations then. Merner continued to attest to the General Court through signed official paperwork that his residence was in Lancaster,” Packard said. “The details of Merner’s admissions relative to his residing outside of his district were not brought to the attention of the Speaker’s Office until September when the Department of Justice investigation had concluded.”

Merner was a Lancaster selectman and a state representative for Lancaster, Dalton, North Cumberland, and Stratford. The only problem is that he lives in Carroll, having moved there in the summer of 2022 with his new wife, Janet Nelson. After moving, Merner was elected to the House to represent Coos District 1 in November 2022.

Merner did not respond to a call Tuesday. He claimed, according to statements made to investigators, that his out-of-district residency was well known, and he was encouraged by others to continue serving, though he did not name his supporters.

The affidavit filed in the case depicted a man who seemed not to realize he was doing anything wrong.

“State Rep. Merner told (Investigator Anna) Brewer-Croteau that he could not believe that someone actually complained to (the attorney general), further stating that he (State Rep. Merner) has done so much for the town of Lancaster,” the affidavit written by Investigator Thomas Defosses stated.

A Lancaster resident contacted the New Hampshire Attorney General’s Office a week after the 2022 election to report Merner was no longer living in town, and that the fact was well-known in Lancaster.

Merner sold his Lancaster home in the summer of 2022 and moved to Carroll after marrying Nelson. He claimed he had an arrangement with the buyer of his former home that he could temporarily stay in a room there, but he often stays overnight in an office he’s rented in Lancaster.

In his Dec. 5 meeting with Brewer-Croteau, during which he was in his boxers and a T-shirt and eating cereal, Merner said he planned to finish his terms as a selectman and state representative but not stand for reelection in 2024 since he no longer lived in Lancaster.

Lancaster Town Manager Benjamin Gaetjens-Oleson was aware of the issue when Brewer-Croteau interviewed him, saying he had fielded many complaints about Merner’s residency. But, Gaetjens-Oleson felt he could not do anything since Merner was technically his boss.

Gaetjens-Oleson reportedly warned Merner about his residency problem, saying it was “going to cause an upheaval with the locals.”

Merner would later tell Investigator Richard Tracy he had to keep on as a selectman since he was the only member of the board who did any work.

Tracy was assigned to the case after Fenella’s office got a complaint about Merner voting in the March elections in Lancaster. Merner told Tracy he thought voting was OK even though he did not live there.

“(He) said he had not heard back from the Attorney General’s Office since he spoke with (Investigator) Brewer-Croteau, and he did not think he was doing anything wrong,” the affidavit states. 

At that point, Tracy had established Merner was not regularly sleeping in the office he rented in Lancaster, as the neighbors attested they did not see him. When confronted with that, Merner claimed he thought it would be OK if he had an address in Lancaster and worked at the town offices regularly.

Now that his residency was out in the open, the investigation was on. Investigators found Merner had been submitting mileage expenses to the General Court for round trips to Concord from Lancaster and not Carroll. Lawmakers can get reimbursed for their trips to Concord to serve their constituents.

A round trip from Lancaster to Concord is about 202 miles, while the Carroll to Concord trip is about 176 miles, meaning Merner was overcharging taxpayers to get to work. According to the affidavit, Merner overcharged taxpayers a total of $973 throughout his entire term.

Merner was ousted from the House in September and resigned as a Lancaster selectman in October. He is now facing prison time, as the wrongful voting charge is a class B misdemeanor which carries a possible three-and-a-half to seven-year prison sentence. He is due to be arraigned on Dec. 28.

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.

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.

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.