Cook On Concord: Were these the intended consequences of November’s vote?

In November, when the voters overwhelmingly picked Democratic officeholders in New Hampshire, ostensibly as a method to send President Bush a message on his presidency and the Iraq War, they may have unleashed forces that will have unintended consequences.

While I have no knowledge of what individual voters were expecting the winners to do, consider many of the things that are going on at the Legislature and in Congress and the changed political environment, and whether this is what the voters were saying they wanted.

First, the new Democratic majority on the Executive Council in New Hampshire gives Governor Lynch the power to name department heads with more certainty of confirmation than he had facing a Republican majority. Already, there has been the resignation of Transportation Commissioner Carol Murray and designation of former Commissioner Chuck O’Leary, a respected officeholder and generally applauded choice, to replace her. Whether Murray would have had a Republican majority urging her retention or not will never be known, but she undoubtedly saw the writing on the wall when her counsel reached agreement with the Attorney General’s office on an exit agreement for her.

Also, 35-year veteran Safety Commissioner Richard Flynn, was given the word that he would not be reappointed when his term ends in March. Assumedly, the majority Republican council would have kept Flynn as a holdover or the governor would have reappointed him had the Republican majority remained. Now Lynch felt he could make a change. Regardless of the merits of change, Dick Flynn is roundly respected, saluted for his years of service, and will be difficult to succeed.

Whether voters intended to change the safety commissioner when they voted is doubtful.

Commissioner John Stephen of Health and Human Services and others undoubtedly are looking at their options when their terms come up, since it is unlikely that the end of change in department heads has been seen yet.

On the legislative front, especially in connection with so-called “social legislation,” the environment either has changed or become more accepting of socially libertarian proposals. These include bills allowing two unmarried adults to adopt — a new concept that would let unmarried heterosexual and same-sex couples jointly adopt children — civil unions, gay marriage, repeal of capital punishment and repeal of the parental notification law on abortion.

Again, whether the voters intended a wholesale change in New Hampshire’s social laws when they voted in November is unclear.

On a more plebeian level, a bill to eliminate straight-ticket voting, defeated repeatedly by Republican legislators, appears to have a good chance of passage. This may be somewhat ironic, given the fact that the Democratic majority largely is the result of straight tickets being cast for Democratic candidates, but it long has been a belief of Democrats in the Legislature that straight-ticket voting is a bad practice. They may be eliminating it at the very time it could help them!

Evidence of this last point can be seen in a recent poll that found the majority of independents in New Hampshire intended to take a Democratic ballot in the 2008 presidential primary. While independents usually broke with the majority Republicans in the past, this may indicate a fundamental shift in voting choice in New Hampshire. However, whether voters intended to eliminate straight tickets when they voted in November is unknown.

What voters intended to say about taxes, education funding and other major issues facing the Legislature is also unclear. What is clear, however, is the fact that the new Democratic majority will handle these issues somewhat differently from the way Republican majorities would have. Already, there is a growing division and debate between the parties on what the mandate of the Supreme Court was on education funding in its last decision and how thorough a treatment of the subject the 2007 legislative session has to give, whether it is limited to defining “adequate education” or broader.

In Washington, the Democratic majorities in the House and Senate seem to be operating differently. In the House, Democrats seem to be able to get their legislation passed, with the help of New Hampshire’s two new Democratic representatives, Congressman Paul Hodes and Congresswoman Carol Shea-Porter.

In the Senate, notwithstanding the Democratic majority, Senate rules have produced virtual gridlock so far, it appears. It is doubtful that the voters intended this and, on the assumption that there was a wholesale rejection of the war, the present stalemate on the ability to debate the war in the Senate seems ironic, if not inconsistent with voter preference.

Unintended consequences of voter action are fascinating, and maybe disturbing, depending on one’s point of view.

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.

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