N.H. lawmaker leaves Democratic caucus over first in the nation primary and LGBTQ rights

The state representative said he faced resistance from his own party for a deal he struck with Republicans in the Senate to secure passage of a bill he has championed

The New Hampshire State House in Concord, N.H. on June 1, 2023.Craig F. Walker/Globe Staff

At lunchtime on Wednesday, Democrats in the New Hampshire House of Representatives had 197 active members in their caucus. By dinnertime, they were down to 196.

Representative Shaun Filiault of Keene said he switched his affiliation from Democrat to independent Wednesday afternoon, citing his displeasure with the way Democrats responded to his legislative deal-making.

Filiault said he needed to find at least three GOP votes in the Senate to secure passage of a bill he’s been prioritizing since his campaign. That measure, House Bill 315, would prohibit a legal tactic known as the “gay panic” defense in homicide cases, which is when a defendant claims their victim’s sexual orientation or gender identity was at least partly to blame for the violence that led to their own death.

At least a dozen states have enacted laws to eliminate such gay and trans panic defense tactics, according to the UCLA School of Law Williams Institute, a research center that focuses on laws, policies, and court decisions affecting LGBT people.

In exchange for at least one of the votes he needed, Filiault said he agreed to pull a proposed constitutional amendment off of the House’s consent calendar and place it on the regular calendar, effectively forcing a debate. Had it stayed on the consent calendar, that amendment would likely have been rejected Wednesday morning without fanfare.

The proposed amendment would enshrine New Hampshire’s first-in-the-nation presidential primary in the state constitution.

For decades, state law has mandated that the primary be held at least seven days ahead of any similar contest. By writing that requirement into the constitution — a move that would require voter approval — this proposed amendment would make it harder for future legislatures to weaken or eliminate the legal mandate to defend New Hampshire’s position at the front of the line.

Despite the primary’s hallowed status in New Hampshire, the Election Law Committee unanimously recommended that the full House kill the proposed amendment. In a report explaining the committee’s decision, Republican Representative Ross Berry of Manchester wrote that the state’s first-in-the-nation status “is largely a moot issue” if national political parties don’t recognize it.

“The committee felt that enshrining this right into the New Hampshire Constitution was not appropriate and should not share the space with such valued institutions such as the right to keep and bear arms and the right to free speech,” Berry wrote. “While knowing this is an important issue to both parties, our current law does an adequate job of protecting this political process.”

This debate is unfolding as the Democratic National Committee seeks to knock New Hampshire out of its prime spot in the 2024 presidential nominating cycle. At the urging of President Biden, the DNC has decided to recognize South Carolina as hosting the party’s first 2024 primary — though New Hampshire leaders have vowed to vote first regardless of what the DNC does.

Still, it’s presently a politically touchy topic for New Hampshire Democrats.

House Minority Leader Matt Wilhelm, a Democrat from Manchester, said members have every right to remove items from the consent calendar.

“From what was communicated to me, the ‘deal’ required from GOP Senators was not merely a removal of the (constitutional amendment) from the consent calendar, but would have required a promise of the Democratic caucus to vote for it,” he said.

Filiault declined the Globe’s request to identify the Republican senator who asked him to pull the proposed amendment off the consent calendar. He said keeping that information to himself was part of the agreement. And he acknowledged that political deals can fall apart. But he expressed optimism that HB 315 will pass the Senate on Thursday and the House will discuss a constitutional amendment that’s worth discussing.

Filiault said he received an “inordinate” amount of pressure from Democrats who urged him to leave the proposed constitutional amendment on the consent calendar. He’s miffed that they failed to see the value in his “no-brainer” deal to protect LGBTQ people by agreeing to debate the potential amendment.

“The Democrats try to make themselves out to be the party of (protecting) LGBTQ rights, but when offered a situation in which they can do so that involves political risk, they didn’t do so,” he said.

“This is a situation in which we need to take that political risk, take that political calculation, and actually protect LGBTQ rights,” he added.

Filiault said the current political climate is subjecting LGBTQ people to a lot of violence and hatred. He noted that the Human Rights Campaign just issued its first-ever state of emergency based on a wave of anti-LGBTQ state legislation across the country.

Filiault, who is gay, said this issue is personal.

“I see my personal safety at stake in this bill, and I feel left behind by the Democrats on this particular issue,” he said.

“At the opportune moment, when we have a chance to be able to fight for LGBTQ equality, I felt abandoned by my party,” he added.

Wilhelm said House Democrats have been fighting for LGBTQ protections and will continue doing so.

“Ever since a similar bill was first introduced in 2021, House Democratic leadership has supported repealing the gay panic defense,” he said, adding that House Democrats recently killed Senate Bill 272, a parental rights bill that he called “dangerous anti-trans legislation.”

The change in Filiault’s caucus affiliation might not affect the outcome of any future vote. He said he’s sticking to the same values he campaigned on last fall, which align 95 percent of the time with the Democratic Party. But his announcement represents a notable rebuke to Democratic leadership, who desperately hope to reclaim a majority in the near-evenly divided chamber.

Republicans currently have 200 active members in their caucus; one Democrat hasn’t been seated, and there are two vacancies in the House — which leaves Filiault as the lone independent in the entire state legislature.

This article has been updated with comments from House Minority Leader Matt Wilhelm.