Lawmaking in a pandemic
Legislative rules were abandoned or adjusted to meet current conditions
When the Covid-19 pandemic hit New Hampshire in mid-March, the Legislature was about a third to half of the way through its second session of the biennium. Many bills were in the process of being considered — some new, some held over from 2019. Then, everything stopped.
The House and Senate stopped meeting or having in-person hearings, due to the need for safety. Eventually, committees figured out how to do limited work by Zoom meetings, but for all practical purposes, legislative activity ceased. Some observers wondered if this might not be an object lesson for those who do not remember when the Legislature met every other year, except in emergencies, and some even commented that they felt safer with the solons at home. In any event, nothing happened again until the beginning of June.
When leadership in both bodies figured out how to commence action, it was very different. The 24-member Senate met in the 400-member House chamber, so they could socially distance. The 400-member House selected the Whittemore Center at UNH in Durham as its location, and photos of the members sitting in chairs, socially distanced on the ice arena’s floor, were in stark contrast to the House chamber in Concord.
Substantively, the Senate voted to extend its time for acting, but the House Republicans refused. The result of this was that no further action on Senate bills in the House was possible, but the Senate could continue to act on House bills. Since it took a two-thirds vote to waive the rules and continue House deliberations on bills, but only a majority to pass House bills revised by the Senate, Democratic lawmakers came up with a plan.
House bills already passed by the House were amended significantly by tacking on language from many bills already passed and sent to the House, and then the revised bills went back to the House, which passed them by a majority vote.
When many of the bills — like family leave, revising the net metering of electricity system, and others — were passed, they went to Governor Sununu for signature, where he vetoed many of the bills that were repeats of those he vetoed the year before. A few, however, became law. Observers noted that this was deja vu. It also was a setup for the fall election campaign.
One set of bills this observer was watching were two bills making changes in election laws. One, proposed by Senate Democrats, made fundamental changes in some election laws on a lasting basis, many of which had been vetoed in the past or were opposed by Governor Sununu, such as “no-reason absentee voting” and online registration. This bill was termed “aspirational” by some of its sponsors, expecting a veto, which it received. The other bill, codifying some of the recommendations of the Select Committee on elections appointed by Secretary of State Gardner, was a bipartisan, 2020-only set of changes to election laws to accommodate voting in a pandemic. Notable provisions of this bill were codifying the fact that concerns about Covid-19 are a legitimate reason to vote absentee, changing the rules on handling absentee ballots and others.
What was interesting about observing coverage of the two bills was how the politicians either confused or misrepresented the bills, and how the press missed the point. At one time in the process, the sponsor of the aspirational bill was claiming it was a fix for pandemic issues, and the Concord Monitor was editorializing that the governor should sign it due to the pandemic.
When the bipartisan bill passed the Senate unanimously, then passed the House with a sizeable majority and the governor signed it, people came to understand the difference between the bills, although partisans had already had the chance to demonize the governor for his veto of one, claiming it was the other. This may prove the old adage that the more you know about the facts of a matter, the less you recognize in many press accounts of it.
Happily, however, as the result of the passage of House Bill 1266 (the bipartisan bill) into law, voters now can get one application for absentee ballots for both the September primary and the November general election, claim Covid-19 concerns as a reason for voting absentee and election officials will be able to deal with the expected large increase in absentee ballots before election day itself. Voters can both be safe and participate in the election.
To get the application for an absentee ballot, go to SOS.NH.gov.
The Legislature probably would not have enabled this if its schedule had been as originally designed, but it would not have had to absent Covid-19!
Brad Cook is a Manchester attorney. The views expressed in this column are his own. He can be reached at firstname.lastname@example.org.