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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.”

A national Democratic organization that works to win state legislative elections is targeting Concord with the goal of wresting control from the Granite State GOP. But despite its money and aggressive rhetoric, local Republicans say they aren’t worried.

“Good luck with that,” said New Hampshire GOP chairman Steve Stepanek, a former member of the House himself.

According to a report in the Daily Beast, the Democratic Legislative Campaign Committee (DLCC) is targeting legislatures in New Hampshire, Michigan, and Minnesota.

“We know what we’re up against, but we are making a play to undercut GOP power in the Michigan House and Senate, the Minnesota Senate, and the New Hampshire House and Senate,” DLCC President Jessica Post said on a conference call with reporters Tuesday.

And while Democrats pushing the plan are angry the Democratic National Committee has refused to fund their efforts, President Joe Biden came through with a direct fundraising appeal on the DLCC’s behalf to help fill their war chest.

“State legislatures are the key to stopping Republican abortion bans, attacks on L.G.B.T.Q.+ rights, bills that undercut our democracy by making it harder for people to vote,” Biden wrote in an email to the DLCC mailing list. “Not just that, state legislatures are essential — I mean it, essential — to lowering prices for American families and building an economy that works for everyone.”

And, the DNC says, it is spending on federal races in New Hampshire and other swing states which will help drive up turnout for every Democrat on the ticket.

State Rep. Matt Wilhelm, D-Manchester, who may be making a play to lead the House Democratic Caucus, touted the state party’s campaign to take control in Concord. He said at a recent party gathering that the team behind the Democrats’ fall push has put together a data-driven organization focused on winning the House and Senate.

“We have built an unprecedented campaign,” Wilhelm said.

But despite the big talk — and big money– House Speaker Sherman Packard (R-Londonderry) told NHJournal he feels very good about his party’s prospects to hold both the House and Senate.

“Their chances of flipping the legislature are extremely thin. How anybody could think they could flip the House or Senate with the disastrous fiscal policies Democrats have imposed at the federal level,” Packard said. “And if the Democrats did take over here, the terrible fiscal policies of Washington, D.C. would come to Concord. Let me tell you, that’s not what the voters of New Hampshire want.”

As for resources, Packard says Republicans will have the money they need “to get out the message about what Democrats would do if they take over.

“And that stunt in Rockingham County– where I live –and their claim that it was a printer’s mistake? That’s beyond laughable. It was a trick and they got caught. Where did the printer get the name of the ‘Rockingham Board of Elections?’ It’s a typical Democratic stunt, trying to fool the voters.”

State Rep. Ross Berry (R-Manchester), one of the members working on the House campaign efforts, said state Democrats need the out-of-state cash and all the help they can get, because the Democratic Party is not a winning organization in the Granite State.

“It is not surprising that New Hampshire House Democrats will once again benefit from large out-of-state contributions and D.C. support. In their last report one couple in California gave them $40,000,” Berry said.

“If this was a race of New Hampshire money only, they wouldn’t have two pennies to rub together,” he noted. “The Committee to Elect House Republicans has a record number of donors (over 950), virtually all of whom are from New Hampshire and over three times the number of donors as the House Democrats. Sadly, extremist liberals from New York and California are more than willing to finance the lies and half-truths of New Hampshire House Democrats, but we weathered their storm in 2020 and we will do it again in 2022.”

Another asset for GOP legislators? Having popular GOP Gov. Chris Sununu at the top of the ticket. Polls consistently show he is popular with both Republicans and independents, and he is credited with helping his party flip the state House and Senate in 2020, even as Joe Biden was beating President Donald Trump in New Hampshire by about eight points.

With Biden’s job approval numbers deeply underwater among Granite State voters, he is unlikely to help Democrats improve their performance over two years ago.

Still, Democratic Party state chair Raymond Buckley sees a blue wave coming, despite recent polling that puts Republicans on top when it comes to the economy, crime, and border security. The national funding could be just what Granite State Democrats need to buck the trends.

“Granite State Democrats more than doubled our voter turnout in this year’s Primary Election over the last midterm when a Democrat controlled the White House,” Buckley said in a recent email to his fellow Democrats. “Even with a limited number of contested primary races, over 90,000 Democrats turned out and voted, as opposed to 2014’s 40,000. There is so much at stake this November, and Granite State Democrats have shown time and time again that we are fired up and are doing what it takes to win.”

Both House Democratic Leader Rep. David Cote (D-Nashua) and Senate Leader Donna Soucy (D-Manchester) declined to comment for this story.

The political website CNalysis, one of the few that analyzes state legislature races, reports the New Hampshire State House “tilts Republican” and predicts Republicans are likely to hold onto their majority.

And Packard said he sees a strong showing for the GOP as voters worry about inflation, soaring grocery prices and high energy costs — all under the leadership of Biden and the Democrats.

“People are hurting like hell right now. And if Democrats ran things in New Hampshire and Washington, they would be hurting even more,” Packard said.

The headline at left-leaning InDepthNH reads, “Questions raised about donation from Gunstock to Sununu’s 2020 campaign.”

Right-wing secessionist state Rep. Mike Sylvia (R-Belmont) called it “inappropriate and possibly illegal.”

So, what is the deal with the $500 campaign donation from the Gunstock Area Commission (GAC) to Gov. Chris Sununu’s 2020 campaign?

The answer, according to experts on New Hampshire election law, is “not much.”

Sununu actually received two campaign donations made to the Friends of Chris Sununu from the Gunstock Area Commission, one for $500 to his 2020 campaign and another to his 2022 re-election bid of $1,000. His opponents have suggested the money — approximately 0.07 percent of the $1.9 million Sununu raised for the 2020 campaign — may have influenced his behavior toward the county-owned facility.

Leaders in the New Hampshire Democratic Party suggested Sununu broke the law, or at least created the possibility of criminal action, by accepting the GAC donation. Gunstock is owned by the people of Belknap County and operated by the management team hired by the commissioners. The commission is appointed by the members of the county’s House delegation, led by Sylvia.

“Gunstock is publicly funded by Belknap County taxpayers, and if Sununu were to have used that public funding for his 2020 gubernatorial campaign, that donation could be in violation of campaign finance law,” the New Hampshire Democratic Party said in a statement.

Sununu’s team, led by campaign advisor Paul Collins, has maintained from the beginning the allegations were nonsense.

State Rep. Manny Espitia (D-Nashua), an outspoken progressive caught in the center of the recent State House drama in the Democratic caucus, has announced he is not seeking reelection. 

“It breaks my heart to not be seeking another term, but I have some commitments that would make it very difficult to spend another two years in the State House,” Espitia wrote on social media.

Espitia made headlines earlier this year when he released a statement suggesting that Black men face heightened danger in the presence of police officers. Soon after, Democratic leadership appointed him to the Criminal Justice committee.

Espitia will remain president of the New Hampshire Young Democrats and said he is working to win back the House majority from the GOP. He said his decision for the coming election is not the end of his political career.

“I doubt this will be the last time I run for the State House, but I’ll be back someday,” Espitia wrote.

News of his departure inspired a show of support from his fellow Democrats.

State Rep. Catherine Rombeau (D-Bedford) thanked Espitia for his leadership and his mentorship.

“Thank you, Manny, for your service, your patience, and your good humor. I’ve learned so much from your leadership (and doubt I’d be trying again without having your encouragement over the years)!” she wrote.

 State Rep. Jan Schmidt (D-Nashua) blamed the $100 a year salary paid to New Hampshire lawmakers.

“If we could actually pay legislators a decent wage we could keep amazing people like you, Manny,” Schmidt wrote on Facebook. “You bring so much to the House and give the position all your heart, oh, what a marvelous Speaker you will be someday, or senator, or governor, or member of Congress. Your world is open and you have our love going forward. Thank you.”

Espitia started his political career working for Nashua Mayor Jim Donchess. Last year, when a neo-Nazi group began posting racist graffiti in his neighborhood, Espitia called them out. Someone claiming to be with the NSC 131 organization responded on social media:

“Anyone w/a name like ‘Manny Espitia’, State Rep or not, has no moral right to throw shade at any true (White) Nationalist New Hampshirite. You have no right to be here, you’re an occupier here & the days of these types trampling on New England are coming to an end,” the anonymous NSC 131 poster wrote.

A subsequent investigation by the New Hampshire Attorney General’s Office and federal law enforcement failed to result in any arrests.

Espitia has also had his own problematic moments. He became embroiled in the controversy surrounding State Rep. Nicole Klein Knight after she repeatedly used the “n-word” in an encounter with a young, Black activist in the State House. Klein Knight eventually called for security, an action Espitia found offensive.

“She engaged in degrading, bigoted behavior against a young Black man,” Espitia wrote in a public statement, “eventually calling security on him, despite being fully cognizant of the heightened dangers Black men face in this country in the presence of law enforcement.”

After the anti-cop comments were reported by NHJournal, Espitia issued an apology. He also blamed NHJournal for the controversy, and then-House Minority Leader Robert Renny Cushing (D-Hampton) ordered House Democrats to boycott NHJournal in retaliation for the reporting.

Espitia did not offer any explanation as to why, a few months later, he did an about-face and apologized to Klein Knight.

“On Feb. 2, I accused her of calling House security as retaliation against a young man. She has explained that she had been genuinely scared for her safety and I apologize for accusing her of such action,” Espitia wrote in the apology issued last month.

And Espitia also declined to join his fellow Hispanics who have publicly denounced U.S. Sen. Maggie Hassan and U.S. Rep. Chris Pappas for embracing the “racist” border policies of the Trump administration, in particular Title 42. After Hassan made a campaign video in front of the Trump-built border wall, prominent members of the state’s Hispanic community like state Rep. Maria Perez (D-Milford) and Eva Castillo of the MIRA Coalition resigned from the New Hampshire Democratic Latino Caucus in response.

Espitia has yet to publicly criticize his fellow Democrats over their new tough-on-illegal-immigration stance.

State Democratic Party leaders tried to silence members of the New Hampshire Democratic Asian American Pacific Islander Caucus who are critical of U.S. Sen. Maggie Hassan and Rep. Chris Pappas’ right turn on immigration. 

“All of us feel like we’re tokens,” said Shideko Terai, a member of the NH AAPI Caucus. “This is not okay. You can’t use us and abuse us.”

Members of the New Hampshire AAPI Caucus planned last week to send out a statement of support for the New Hampshire Latino Caucus after members of the latter group’s executive team publicly quit in protest of Hassan’s support for a border wall, and Pappas and Hassan’s support for Title 42 immigration restriction.

“I have no patience for the shenanigans,” said Terai, who drafted the statement. “I’m aware of the wheeling and dealing in politics, but when it comes to doing what is right, they have Maggie Hassan’s reelection take precedence over the care of immigrants.”

With polls showing Hassan is headed for a loss in November she has responded by veering right, calling for additional wall construction on the southern border with Mexico. She even went to the border to film campaign videos as part of her effort.

Terai spoke with her caucus leadership, and they decided to draft a statement that leadership from all the state party constituency caucuses could sign to support the Latino Caucus leaders. Instead of unified support, Terai said, leaders of other minority caucuses tried to dissuade her from going forward.

“I was told, ‘We have to be really careful. We need Sen. Hassan’s fundraising,’” Terai recalls.

Another message sent to Terai stated that Free State libertarians will use the dissent in the Democratic Party in an effort to cement their control of the state.

“I am very cognizant that we have a really tough election to run. It will not be easy to win in November despite the fact that we have values that lift all our people up. No, the Free Staters do not lead the way but they are running our state now and if people stay home in November the Free Staters will be running our state for years to come. They are using this as a recruitment tool,” the email stated.

The state party started several constituency caucuses several years ago as a way to reach out to, and support, various groups. Aside from the Latino Caucus, and the AAPI Caucus, there is the African American Caucus, the Stonewall Caucus, the Young Democrats Caucus, the Women’s Caucus, and a Veteran’s Caucus. 

One email Terai saw sent from a prominent Democrat to another constituency caucus leader states the party needs to protect Hassan and that means silencing critics.

“Yes, I am suggesting you hold off (on the statement of support.) I think this matter needs to be addressed directly to Sen. Hassan. It doesn’t mean we don’t deal with the situation, but we should not address it in the same way we would address our opponents. We are all stewards of the Democratic Party, and we need to work through our differences,” the email reads.

Terai said another prominent caucus leader told her the party needs Hassan’s money, and criticism of the senator would have negative consequences for BIPOC (Black, Indigenous, and people of color) Democrats. Terai thinks, based on the flurry of activity set off when she sent the statement to caucus leadership last week, that Hassan’s team pressured the state party to stop the statement.

“That’s my suspicion. But you know, it’s just my suspicion from the flurry of emails, texts, and phone calls that I got,” Terai said.

Hassan’s team did not respond to a request for comment on Thursday, nor did a representative for New Hampshire Democratic Party Chair Raymond Buckley. Rep. Maria Perez, D-Milford, who was one of the Latino Caucus leaders who resigned from the executive team, was angered when she found out about the effort to silence the other caucuses.

“I’m going to start by saying that we’re very disappointed to learn about some political leaders calling other caucuses and asking them not to sign the letter to @SenatorHassan very disgraceful and anti-democrat from leadership! You know who you are, our silence is not an option!” Perez tweeted.

Perez told NHJournal that Hassan’s team is refusing to meet with her and other members of the Latino community. Perez has been told the senator does not have time to talk. Terai said the party needs to start listening to the minority caucus members before it is too late.

“All of us are gung-ho Democrats, but we’re not gung-ho NHDP, mostly because of the way we have been ignored,” Terai said.

The NH AAPI Caucus statement, released Thursday afternoon, requested Pappas and Hassan to change course.

“We respectfully ask Sen. Hassan and Congressman Pappas to reverse course and revoke their support of Title 42 as stated clearly by the NHDP Latino Caucus leaders. The decision of the signers of their statement to resign from the NHDP Executive Committee is a bold demonstration of staying true to the fight for immigrant justice. Our immigrant brothers and sisters seek safety and refuge and deserve to be welcomed across the southern border into the United States. President Joe Biden wants to end Title 42,” the statement reads.

Aside from Terai, signers included AAPI leaders Cora Quisumbing-King, and Sumathi Madhure; Laconia Democrats Secretary, and Latino Caucus Chair Carlos Cardona; Delegate-At-Large Jordan Applewhite with the Stonewall Dems; and Delegate-At-Large the Revs. Susan and John Gregory-Davis, co-pastors of Meriden Congregational church.

Late Friday, progressive Democrat Rep. Manny Espitia (D-Nashua) issued a quasi-apology for his suggestion that Black men are in danger when they engage with State House security officers.

“A statement I recently made in which I referenced the “heightened dangers Black men face in this country in the presence of law enforcement” has been misrepresented in a news article to imply that I was calling the integrity of our Protective Services personnel into question,” Espitia wrote to his House colleagues.

“I apologize for not choosing my words more carefully, and I appreciate you providing me the opportunity to make this important clarification,” Espitia said.

On Thursday night, Espitia issues a statement condemning Manchester Democrat Nicole Klein Knight, who has been the center of a maelstrom this week after reportedly using the “n-word” in a confrontation with Democratic activist Jonah Wheeler, who is Black.

In his statement, Espitia — who is also head of the New Hampshire Young Democrats — denounced Klein Knight’s language and announced his organization was withdrawing its endorsement. He also suggested her behavior wasn’t merely racist, but potentially dangerous.

“Rep. Klein Knight represents one of the most racially diverse districts in the state and should therefore feel an even greater responsibility to uplift Black, Brown, and Indigenous voices. Instead, she engaged in degrading, bigoted behavior against a young Black man, eventually calling security on him, despite being fully cognizant of the heightened dangers Black men face in this country in the presence of law enforcement,” Espitia wrote.

Republican legislators immediately reacted to Espitia’s suggestion that State House officers posed a danger to Wheeler or anyone else.

“A statement attributed to one of our House colleagues appeared in a news article today that one could view as calling into question the integrity of our Protective Services personnel,” Speaker of the House Sherman Packard (R-Londonderry) wrote in an email to House members. “To be clear, General Court Protective Services provides unbiased security services to legislators, staff, and the public. They serve every legislator, staff person, and member of the public equally, fairly, and with the utmost professionalism.

“The leadership of Protective Services holds their officers to very high standards and we have a high level of confidence in each of them,” Packard added. “We are lucky to have them.”

Mark Morrison, a former president of the New Hampshire Police Association and a member of Gov. Chris Sununu’s Law Enforcement Accountability and Community and Transparency Commission, told NHJournal that Granite State police officers do a good job of protecting everyone, including minorities. He said it is simply not true that people of color in New Hampshire are less safe around police.

“I feel very confident that all (law enforcement) agencies in New Hampshire really work to make sure that that type of treatment does not happen to anybody,” Morrison said. “I do not believe there is any systematic discrimination that takes place with any New Hampshire agency.”

Espitia is a leader of the progressive wing of the New Hampshire Democratic Party and, Republicans were quick to note his comment echoes the “Defund the Police” movement backed by many progressives, including the New Hampshire ACLU and the Black Lives Matter organization. The push to defund police departments is widely seen as hurting Democrats at the ballot box.

Espitia did not respond to a request for comment.

Rep. Doug Trottier (R-Belmont) says he thinks Protective Services “do a good job.”

“No matter what color, race, anybody, I don’t think that puts anybody in safety concerns. For the most part, everybody is treated equally,” Trottier said.