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For years, the University of New Hampshire had a reputation for fostering free speech and a diversity of ideas on campus. But that reputation has been under assault of late, and now its standing in the latest Foundation for Individual Rights and Expression (FIRE) annual rankings for campus speech has fallen from third in the nation to 59th.

“I did not expect such a drop,” State Rep. Daniel Popovici-Muller (R-Windham) told NHJournal. He was the prime sponsor of a new law protecting free speech on campus passed earlier this year.

As disturbing as UNH’s fall may be, it still hasn’t hit Ivy League levels. The university with the worst free-speech climate in the country is right across the state line in Massachusetts: Harvard.

“Harvard University retained its position as the lowest-ranked institution for free speech for the second consecutive year,” according to the report. “Harvard, Columbia University, New York University all received an ‘Abysmal’ rating for their speech climates. The University of Pennsylvania and Barnard College round out the bottom five.”

Dartmouth College was ranked 224, one of the 30 worst-performing schools in the country.

The top five states: University of Virginia, Michigan Technological University, Florida State University, Eastern Kentucky University, and Georgia Tech. UNH, on the other hand, maintains pro-speech policies, according to the FIRE report, but the latest student survey exposes troubling trends. FIRE’s free speech report found a huge majority of UNH students (77 percent) support shouting down speakers with whom they disagree. Another 42 percent indicated using violence to stop speakers they disagree with is sometimes acceptable. 

A UNH representative told NHJournal the university has an excellent free speech climate, as evidenced by the many events held on campus.

“The University of New Hampshire has a long and proud history of supporting the First Amendment. Over the course of the last school year, UNH permitted a variety of Free Speech events across the ideological and political spectrum,” UNH Executive Director of Public Relations Tania deLuzuriaga said.

But the ACLU of New Hampshire criticized how UNH handled anti-Israel protests on campus, using the police to stop pro-Palestine protesters from setting up a large-scale “encampment” on campus. While police ended up arresting 12 people during the May protests, but all but one of those charged had their cases dropped. 

Popovici-Muller worked with FIRE and UNH when he created the free speech protection law (HB1305), signed into law by Gov. Chris Sununu this summer. When he first started working on the issue in 2023, Popovici-Muller said, conservative and religious groups were being silenced at the school. 

“There has been a pattern of certain groups being treated differently from others when it comes to free speech,” he said.

The Christian group Free Exercise Coalition (FEC) had to lawyer up and file a federal complaint when it was denied official recognition as a student group at the University of New Hampshire Franklin Pierce School of Law by the Student Bar Association (SBA) last year.

State Rep. Ellen Read (D-Newmarket) is one of a handful of Democrats who supported Popovici-Muller’s bill. She was a bit taken aback that more Democrats were not on board. The right to protest was instrumental in the fight for liberal ideals like civil rights, women’s liberation, and against the Vietnam War, she said.

“Free speech is a liberal, leftist concept going all the way back to John Locke,” Read said. “We need to uphold those values. If one side can violate basic rights, that will be used against us as soon as the power shifts.”

New Hampshire Democrats who saw Popovici-Muller’s bill as only benefiting conservatives changed their minds when the pro-Palestinian protests started, Read said.

It shouldn’t matter what the viewpoint of any particular group or individual happens to be, Popovici-Muller said. A public institution like a university must respect everyone’s right to speak and assemble. 

“You cannot stack the deck. If you have the power to stack the deck today in your favor, in the future it will be stacked against you,” he said. “The university is facing a very challenging environment where lots of people don’t understand treating all speech equally regardless of its content.”

The daycare employee accused of sending thousands of child sex abuse images to her romantic partner, former state Rep. Stacie Marie Laughton (D-Nashua), is getting a mental health evaluation.

Lindsay Groves, 39, of Hudson, was arrested in June 2023 and charged with federal crimes for allegedly taking sexually explicit photos of the children under her supervision in the Tyngsborough daycare where she worked. Groves allegedly sent those images to Laughton as part of their disturbing sex life. 

According to court records, U.S. District Court Judge Donald Cabell last week ordered Groves to be removed from her current jail cell by U.S. Marshalls and brought to a facility where she will undergo a mental health evaluation to determine if she is able to even stand trial.

“I find there is reasonable cause to believe that [Groves] may presently be suffering from a mental disease or defect rendering her mentally incompetent within the meaning of [the law],” Cabell wrote.

Groves has been arguing for months she is not mentally competent to stand trial, according to court records, though many of those records are sealed. Cabell’s Aug. 9 order does not give details as to why he finds it reasonable she might be mentally ill.

Both Groves and Laughton are being held without bail pending a trial in the United States District Court in Boston. The last known location the two were being held pretrial was the Valley Street Jail in Manchester. Representatives with the U.S. Attorney’s Office in Boston declined to confirm their present location. At this point, Laughton has not tried to raise the issue of competency.

Prosecutors are under court order to get Groves to an appropriate faculty so the evaluation can be done within the next month by a psychiatrist or psychologist. Then, whoever examines Groves must present a report to Cabell detailing her mental health history, any current diagnosis, and an expert opinion on if Groves is competent to stand trial.

The pair were arrested separately last summer after Laughton started showing other people the images Groves was sending, according to court records. Soon after, Nashua Police began investigating the couple.

Laughton and Groves have a long-standing, volatile relationship. In 2022, Laughton was charged with harassing Groves and her family, which cost Laughton a seat in the state legislature. Laughton was arrested in November of that year for stalking Groves shortly after winning reelection to the House. Laughton was jailed for weeks until the House Democratic Caucus finally forced a resignation.

During the investigation of the stalking case, it was revealed that Laughton had called the police to report Groves was abusing children at the daycare. The accusation was dismissed as part of the ongoing harassment at that time.

According to the federal case documents, Laughton and Groves were reconciled after the stalking case was resolved without a jail sentence. Groves started sending the disturbing photos to Laughton, and the two had explicit conversations via text about the images and their own sexual desires. 

Laughton and Grove discussed raping the children at the daycare facility. In one chilling exchange, they strategized about how to get away with the horrific crime. Laughton maintained there was nothing wrong with sexually abusing children:

GROVES: “You mentioned how I said I was afraid that the kids will run to the parents if we do it with them I wasn’t being serious.”

LAUGHTON: “OK because like I get concerned about that cause I don’t wanna get caught if we do.”

GROVES: “I was joking anyway and you took me serious.”

LAUGHTON: “Oh I know but I just don’t wanna get in trouble. I mean I want to do what we want to do because we like it and we approve of it but others think this is wrong. Lots of parents don’t like people touching their kids and it is against the law …”

In another exchange, Laughton appears to admit having raped a child with Groves

“I was asking because I know we’ve had some back-and-forth, and I know we initially said we do nothing with kids ever again, and you said you were afraid that if we had kids if they would go back and tell the parents the same with the kids you work with,” Laughton texted to Groves.

Laughton, born Barry Laughton, is a biological male who identifies as female. Laughton became New Hampshire’s first transgender elected official in 2012, and the first transgender elected official to be forced to resign.

Laughton was forced out weeks after the 2012 election after it was learned he was still on probation on a felony theft charge. Laughton has also been charged with stalking and making bomb threats. None of that prevented New Hampshire state Democratic Party chair Ray Buckley from praising Laughton as part of “the backbone of the Granite State” in 2022.

Laughton was married for many years to Lisa Laughton, the alleged co-conspirator in a 2008 fraud case that resulted in the felony conviction that temporarily derailed Laughton’s political career. Laughton has also conducted a long-term sexual relationship with Groves. Both Groves and Lisa Laughton are biological women. 

And, Hillsborough County officials confirm, Laughton is being housed with the jail’s male population.

A new plea offer is on the table for former Strafford County Sheriff Mark Brave, the lawman charged with stealing taxpayer money to fund his love life.

Brave, who was forced to resign last year after getting caught lying to the court, rejected the original plea agreement dangled by prosecutors in March. His counter proposal was then rejected by the state. But instead of heading to trial, Brave and lawyers with the New Hampshire Attorney General’s Office agreed to enter into mediation. 

Mediator Peter Fauver met with both sides this week and issued an order on Wednesday. Fauver’s order is currently sealed. Michael Garrity, spokesman for the New Hampshire Department of Justice, told NHJournal the clock is now ticking.

“The parties were given until May 24 to resolve the matter by plea or the case will return to the trial track,” Garrity said.

Criminal mediation, also known as a felony settlement conference, typically involves a judge not connected to the case working with both sides to reach a consensus. According to New Hampshire Judicial Branch Policy, cases suitable for felony settlement conferences involve defendants who admit wrongdoing. The conferences include input from the alleged crime victims as the judge guides all parties to a deal.

Brave’s saga started last year when county officials became suspicious of his spending habits with the county credit card. According to the investigative report, Brave was using his county card to buy plane tickets, hotel rooms, and meals for his extramarital affairs. While he was under investigation, Brave refused to step down and instead lashed out in the press, claiming he  was the victim of political bullying and accused County Commissioner George Maglaras of racism.

When he was charged last summer on theft and perjury counts, Brave initially refused to go on paid administrative leave, but finally bowed out under pressure from county commissioners.

Brave got in trouble again soon, this time for violating his bail conditions, lying about where he lived, and hiding money in order to qualify for a free defense attorney, according to court records. 

Brave was not supposed to stay living in New Hampshire under the bail order set by the court, an order he ignored when he paid a year’s lease on an apartment in Massachusetts and bought himself a sports car. At the same time, Brave claimed he did not have enough money to pay for a lawyer.

When prosecutors discovered he did not live at the Dover address he used in court, they sought to have his bail revoked. They also accused him of additional theft for taking his sheriff’s salary while living in another state. Brave got out of that jam by agreeing to resign from his position. 

It remains to be seen if the mediated agreement also lets him stay out of jail.

Brave made headlines in 2020 when he became New Hampshire’s first elected Black sheriff. The new Democratic star ran a Black Lives Matter-friendly platform, agreeing to reform police. One of his campaign promises was to end the practice of having cops in schools, a promise he broke when he signed a contract with the Farmington School District for his office to provide a school resource officer. Such contracts bring in needed revenue to the department. 

According to New Hampshire Attorney General John Formella, Strafford County Sheriff Mark Brave used taxpayer money to subsidize his love life and lied about it to a grand jury.

“The decision to charge an elected constitutional officer was not made lightly,” Formella said. “However, no person is above the law, and the evidence in this case required action. It is my hope that the public will be reassured that there will be equal justice under the law for every person in this state – including public officials.”

Brave denied any wrongdoing Thursday morning when he turned himself in to state police. He has blamed his downfall on county politics, not his multiple affairs.

“I will go in civilian clothing, no weapons, and bring my $40 for the bail commissioner,” Brave told Foster’s Daily Democrat prior to his arrest. “I expect I will be photographed and fingerprinted. What I want is to get ahead of this situation and to get a trial date.

“I will fight this all the way. If I had done anything wrong, I’d own it. But I, 100 percent, did nothing wrong.”

Brave also blamed racism by county officials for the investigation that resulted in criminal charges. Formella said Thursday saw no evidence that racism played a part.

“That is unsubstantiated,” Formella said.

Brave allegedly stole $19,000 from Strafford County taxpayers through a scheme in which he submitted fake receipts for expenses related to his affairs, according to Formella. He also repeatedly lied about his actions, at one point roping U.S. Rep. Chris Pappas (D-Manchester) into his fabrications.

He is charged with one count of theft by deception, two counts of falsifying physical evidence, and five counts of perjury. If convicted on all counts, Brave would face a 31-to-64-year prison sentence.

According to Formella, Brave tried to hide the fact his spending was connected to his affairs by falsifying one receipt to remove the identity of a female companion, and by submitting numerous false justifications for reimbursement. They included attending conferences and meetings that he did not attend or did not occur, or for organizations that did not exist. 

Formella said that county officials became suspicious about Brave’s spending and alerted the state in April. Once the Attorney General’s Office began to investigate, Brave lied to investigators and a grand jury, Formella said.

The first perjury charge involved a female employee who traveled with Brave to Florida. The woman told investigators she did not stay in the same hotel room as Brave. Instead, she claimed, she stayed with family.

The woman later admitted to the grand jury that she did stay in the same hotel room as Brave. But the sheriff is alleged to have repeated her earlier version of events.

The second perjury charge concerned allegations that Brave stated he attended events for a fictitious law enforcement organization. 

The third perjury charge related to a trip Brave took to Maryland. Brave told the grand jury he was scheduled to meet with Pappas, but that the congressman had to cancel the meeting and gave Brave a flag that flew over the U.S. Capitol as an apology. 

“Records from the congressman’s office indicate that no such meeting was ever scheduled, and no such gift of a flag as an apology ever took place. Rather, based on investigation, Sheriff Brave is alleged to have actually met a paramour who lived in the area,” Formella said.

The fourth and fifth perjury charges concerned a dinner cruise and hotel stay for Brave in Boston. He told the grand jury he purchased the tickets in advance so he and a male deputy could attend a charity fundraiser. But the investigation found Brave bought the tickets on the same day as the cruise for himself and another paramour to attend the event together – which was on the paramour’s birthday.  

Brave is further alleged to have alternatively claimed in his testimony that he did not remember the trip, that no one stayed with him at his hotel, and that he did not recall if his paramour spent the night with him. After hotel surveillance video showed he was lying, Brave then admitted the paramour spent the night with him at the hotel for romantic and sexual purposes, according to Formella.

Brave is still the head of the Strafford County Sheriff’s Department. Formella said his office does not have the legal ability to remove Brave from office.

“There’s a process to remove him, but that will be up to county officials,” Formella said.

County Administrator Ray Bower did not respond to a request for comment. 

Brave, a Democrat, became the state’s first elected Black sheriff in 2020. During his campaign, he aligned himself with the Black Lives Matter movement, promising to get police officers out of schools. However, he contracted with a local school department to have a deputy assigned to schools once elected.

Brave has been considered a rising star in the Democratic Party, and he still has some powerful political allies. He is represented by the influential and well-connected Democratic law firm of Shaheen and Gordon — the “Shaheen” being Billy Shaheen, husband of U.S. Sen. Jeanne Shaheen.

In July, when news of the investigation broke, Executive Councilor Cinde Warmington continued to list Brave on the endorsements page of her Warmington for Governor website.

After Brave’s arrest, his name was removed from the list of endorsements.

New Hampshire GOP state chair Chris Ager released a statement after Brave’s arrest.

“Sheriff Brave’s corrupt acts are yet another example of Democrats’ brazen lack of consideration for the communities they serve,” said Ager

“While hard-working Granite Staters struggle to make ends meet, Democrat Sheriff Mark Brave thought it was okay to defraud taxpayers for his personal gain, and then lie about it under oath.”

“Contrary to what Brave clearly believes, Democrats are not above the law.”

Former Democratic leader Jeffrey Woodburn won’t have to start serving jail time yet, despite convictions for criminal mischief stemming from allegations of domestic violence.

The one-time state Senate Minority Leader from Coös County plans to appeal his criminal mischief sentence while preparing for a new domestic violence trial. In March, the New Hampshire Supreme Court ruled he did not get a fair trial the first time and reversed the domestic violence convictions but let the criminal mischief charges stand.

Last week, Coös Superior Court Judge Peter Bornstein gave Woodburn until July 14 to file his sentence appeal for the criminal mischief charges. The new domestic violence trial is set for next spring. 

Woodburn was originally sentenced to two years in jail with all but 60 days suspended. 

Woodburn allegedly bit his then-girlfriend during a brawl after a Christmas party in 2017. Days later, he allegedly kicked the door to the woman’s house when she refused to let him inside. Earlier that year, in August 2017, he reportedly kicked her clothes drying, breaking the appliance, according to court records.

Woodburn has been fighting the charges for years, becoming a recurring headline for state Democrats. Woodburn was formally charged in August 2018 but still ran for reelection in the face of calls for his resignation. He won the Democratic primary but lost in the general election that year. 

Woodburn’s appearance in the news again as he fights the convictions coincides with news stories of other New Hampshire Democrats linked to violence against women.

Former State Rep. Stacie Laughton (D-Nashua) ended up in jail for weeks after the 2022 midterm elections on charges of stalking a woman and her family. State Democrats, desperate to edge out the House GOP’s razor-thin majority, stayed silent about Laughton for nearly a month. Democratic leaders only called for Laughton’s resignation when it became clear they would not have the majority with or without the Nashua seat.

Democratic U.S. Sens. Maggie Hassan and Jeanne Shaheen burned political capital backing President Joe Biden’s judicial nomination of lawyer Michael Delaney. Sexual assault victims, including Chessy Prout, opposed Delaney. Prout was a 15-year-old sexual assault victim who sued the elite St. Paul’s private school in Concord. Delaney, who represented the school, used his expertise in court to strip the teen girl of her anonymity.

Delaney’s nomination was finally torpedoed in May after weeks of heavy criticism from victims and advocates, but not before Hassan and Shaheen endorsed him.

New Hampshire’s top Democrat played fast and loose with the facts, the New Hampshire Supreme Court has ruled, and now he is facing a defamation lawsuit for spreading falsehoods about a GOP candidate.

The State’s highest court decided that a defamation lawsuit filed by state Rep. Dan Hynes (R-Bedford) against the state Democratic Party and its controversial chairman Ray Buckley can move forward in Hillsborough Superior Court.

At issue is a 2018 campaign flier claiming Hynes, who was running for state Senate at the time, was a convicted extortionist who had been disbarred. But the flier got several key facts wrong. Now Buckley and his party are exposed to potential liability.

“Dan Hynes targeted woman-owned businesses for extortion. Hynes was charged by Republican Attorney General Kelly Ayotte, convicted by the State of New Hampshire for ‘theft by extortion’ and disbarred,” the flier stated.

But Hynes’s conviction in a 2009 extortion by theft case was annulled, which makes the flier fundamentally false, the court ruled.

Rep. Dan Hynes (R-Bedford)

“Under New Hampshire law, annulled convictions should be treated as if they never happened. Because a criminal arrest, conviction, or sentence potentially implicates one’s personal freedom, these are the most extreme steps the State can take against individuals. The effect of New Hampshire’s annulment statute is to, as a matter of law, render the arrest, conviction, or sentence void for the purposes of public discourse,” the ruling stated.

“The fact that the plaintiff was convicted undeniably exists, but as a matter of New Hampshire law, upon annulment, it is false and misleading to fail to state that the conviction was annulled.”

And while Hynes was disciplined for his actions with a suspension of his law license, he was never disbarred.

That was enough of a mistake to warrant a trial, the Supreme Court ruled Thursday, overriding a lower court that had dismissed Hynes’ case.

One common defamation defense is to claim the person making the charge wasn’t aware of the facts and made an innocent mistake. Unfortunately for Buckley, the Supreme Court noted that the hit piece mailer included the addresses of internet links to relevant court documents, including Hynes’ annulment. The hit piece also included an internet link to documents concerning Hynes’ law license suspension, meaning Buckley and the NHDP knew or should have known he was not disbarred.

“The inclusion of this citation in the mailer could lead a reasonable jury to find that the defendants were subjectively aware that the plaintiff had not been disbarred and, therefore, subjectively aware that the language in the mailer was untrue,” the ruling states.

Buckley and the state party declined to comment on the court’s ruling or answer questions about the false statements in the campaign flier.

According to court records, Hynes sent a “Cease and Desist/Demand Letter” to Claudia Lambert, Claudia’s Signature Salon owner in Concord, in 2009. Hynes claimed that because Lambert’s salon charged women more money for haircuts than men or children, she was engaging in gender discrimination. 

Hynes’ letter demanded that she stop charging women more money and that she pay him $1,000. Lambert’s husband contacted the New Hampshire Attorney General’s Office, and during a sting operation, an investigator witnessed Hynes taking $500 to settle his claim of unfair trade practices. During that meeting, Hynes reportedly said he had sent other letters to other hair salons and was currently in negotiations with these businesses and their attorneys.

Hynes was convicted, ordered to pay restitution, and had his law license suspended for a year. The conviction was later annulled after completing all the terms of his sentence.

On Thursday, June 1, 2023, Democratic presidential candidate Robert F. Kennedy, Jr. will address the New Hampshire Senate as part of the New Hampshire Senate Presidential Series. He will discuss what makes NH unique in relation to its status as the first primary state, as well as key priorities of his campaign.

The U.S. Supreme Court is catching up to New Hampshire’s parental-rights approach to education, affirming that parents who use publicly-funded choice programs are free to choose religious schools.

In a 6-3 ruling released Tuesday, the court found Carson v. Makin that First Amendment protections for religious expression prohibit the government from discriminating against religious schools when states offer a school choice program to parents.

Maine has many rural communities — encompassing almost half of all the state’s 260 school districts — that cannot afford to support a middle school or high school. The state has long offered families tuition assistance so they can access education services for their children. But in 1981, Maine passed a law preventing parents from choosing a religious school.

The Supreme Court found that prohibition was unconstitutional.

While Tuesday’s ruling is a big change for some 18 states with similar bans, New Hampshire is at the forefront of school choice religious freedom. New Hampshire’s tuition assistance programs, and Education Freedom Accounts (EFAs) can be used for any school, including religious schools.

“New Hampshire has no religious test for tuition aid or EFAs, so the ruling confirms New Hampshire’s position as correct,” said Drew Cline, chair of the state Board of Education.

According to Andrew Wimer with the Institute for Justice, New Hampshire changed its laws on tuition assistance last summer. Wimer said the ruling strengthens New Hampshire’s religious freedom against any future attack.

“Today’s ruling does not change anything in New Hampshire, but does ensure that if a future legislature were to put the same restrictions back in place it would likely be found unconstitutional,” he said.

The law change came after the Institute for Justice filed a lawsuit on behalf of a Croydon couple Dennis and Cathy Griffin who wanted to send their grandson to a private Catholic school, Mount Royal Academy.

“We are happy the legislature did the right thing in removing politics from school funding by allowing individual choice on how our tax dollars are applied to our children’s education,” said Dennis Griffin said last year. “Cathy and I feel Mount Royal Academy is the best choice for our grandson’s education and the government should not be restricting the use of our tax dollars from funding our choice.”

Croydon, a town of about 700 people, does not operate a middle school, instead giving families tuition money they can use to send their child to a school in another district. But Croydon’s School Board refused to give the family the money because Mount Royal is Catholic, and New Hampshire at the time still had an anti-Catholic law on the books

Most of the laws prohibiting states from using public money for private religious schools come from a anti-Catholic movement started in the 1870s by U.S. Rep. James Blaine, a powerful Republican from Maine. Blaine’s response to the immigration of Catholic and Jewish families from Europe was to endorse a nativist movement to make sure the immigrant schools would not get any funding.

At the time, many public schools taught a form of Protestant Christianity.

New Hampshire’s Education Commissioner Frank Edelblut applauded the ruling, saying it affirms New Hampshire in its commitment to religious freedom.

“Schools of all kinds – public, non-public, religious or non-religious – have the distinct duty and ultimate responsibility to provide the best education possible for their students. This Supreme Court ruling clarifies what has always been so — that we do not discriminate against anyone, period. This ruling will ensure that school choice remains an opportunity for every student throughout the nation, and that there will be equality available among all educational institutions. There is no place for discrimination here in New Hampshire.”

New Hampshire Democrats were largely silent on the decision, with no member of the state’s federal delegation making any mention of it. They also declined to respond to requests for comment.

Granite State Democrats have long opposed school choice, especially the funding for parents who want to send their children to religious schools. During the debate over EFAs last year, state Sen. Tom Sherman (D-Rye) complained, “There’s just no accountability to property taxpayers whose money is being used for private, religious and home school.” 

Sherman is now the Democratic nominee for governor.

Senate Minority Leader Donna Soucy (D-Manchester) specifically cited the anti-Catholic “Blaine Amendment” language in the state constitution in her opposition to the EFA program.

“The New Hampshire Constitution prohibits taxpayer dollars from being directed to private or religious schools. Now more than ever, when legislators on both sides of the aisle have identified property taxpayer relief as a priority, it is difficult to understand why we would remove safeguards for the use of taxpayer dollars and ask hardworking Granite Staters to pay for the private education of other children and families.”

And former state Rep. Tamara Meyer Le (D-North Hampton) was removed from the House Education Committee in 2019 after a profanity-laced social media rant against private and religious education. “F*** private and religious schools,” Le wrote.

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.