A long-serving Democratic state lawmaker who was never sworn in for his current term resigned Wednesday from the New Hampshire House of Representatives, opening the possibility that an active member will take his place in the near-evenly divided chamber.
David Cote of Nashua, who was elected to 21 two-year terms, had asked to be sworn in remotely because his health conditions put him at exceptionally high risk of serious illness from COVID-19, even as most people can resume their daily lives in pre-pandemic fashion.
But, unlike the Senate, the House doesn’t allow for remote participation. So his seat sat empty.
Cote, who wears leg braces and uses crutches to walk, has cerebral palsy and suffered a heart attack several years ago. In 2021, Cote and fellow Democrats — including two House members who have since died of cancer — sued under the Americans with Disabilities Act to force the House to allow remote participation.
A federal judge denied their request for a preliminary injunction, an appellate court affirmed the decision, and the US Supreme Court declined to weigh in. The matter is back before a US District Court judge, who has for months been mulling a motion to dismiss the case.
No decision on that motion had been listed in court records, as of Wednesday morning.
In court filings, Speaker Sherman Packard and the other defendants contended that they are entitled to absolute legislative immunity and that the House rules were adopted as part of the normal legislative process involving both parties. After all, some Democrats voted with Republicans in January to reject proxy voting and virtual committee meetings for the current term, they noted.
Still, the Democrats have faulted Packard for his opposition to remote participation. Packard did not immediately respond Wednesday to a request for comment.
House Democratic Leader Matt Wilhelm of Manchester praised Cote’s advocacy and counsel, and he said Democrats will keep pushing for House members to be able to participate fully regardless of their physical ability.
“I remain disappointed that the House rejected efforts to allow remote participation in the legislative process, which effectively blocked Representative Cote and others in similar situations from fully serving their constituents,” he said. “Representative Cote’s knowledge, advocacy, and intellect will be sorely missed in the House.”
Cote stepped in as minority leader in March 2022 upon the resignation of Representative Renny Cushing, a Democrat from Hampton, who died of cancer shortly thereafter. Cushing was the lead plaintiff named in the ADA lawsuit that Cote has continued to press.
Democratic Representative Laura Telerski of Nashua said she believes the House could have found a solution to allow Cote to participate, and she fears the message that his exclusion sends to Granite Staters with disabilities.
Even though he wasn’t sworn in to participate directly and cast votes on bills this year, Cote has been serving as a mentor and advisor while following the legislative process from home, Telerski said. He would reach out with comments and would answer her questions on the phone, she said.
“I really can’t think of anyone else who has dedicated his life to service to the extent that he has to both our city and our state,” she added.
In a statement, New Hampshire Democratic Party Chair Ray Buckley said Cote’s “intellect and wit” will be missed in the House.
“I have the utmost respect and admiration for my friend of decades,” he added. “While his time as a legislator has come to an unfortunate end, David will continue to be an active and valued leader in the state Democratic Party, where he serves on the influential party Rules Committee.”
Cote did not respond Wednesday to an interview request.
With this resignation, there are now 199 Republicans, 196 Democrats, two independents, and three vacancies in the 400-member House — which means both parties are keeping a careful tally of their caucus membership headed into the second half of this two-year term.
Telerski, who chairs the NH House Democratic Victory Campaign Committee, said her team is focused on winning special elections in August and September to fill two of the House vacancies. It’s not yet clear whether and when city officials will request a special election to fill Cote’s seat.