Fighting the ghost war on civil liberty
Fighting the ghost war on civil liberty
New Hampshire Libertarians mobilized against COVID mitigations
New Hampshire has always been “Live Free” to the core from our very start. Our revolutionary Sons of Liberty were thugs even among an organization dedicated to strong-armed tactics. Ask Colonial Governor Wentworth.
Wentworth and his family were exiled from the state in 1775 as revolutionary sentiments were reaching a boiling point. The New Hampshire constitution, even to this day, has an article ensuring citizens’ right to revolution in the case that public liberty is manifestly endangered, so it should be of little surprise that a bill to prohibit the suspension of civil liberties during a declared state of emergency has been winding its way through the state legislative process.
Indeed the legislation has cleared both houses and is expected to be signed into law by the governor.
This legislation is squarely a child of the pandemic. If you believe that COVID is an overdone dish being sold to the public, then you are eager for this legislation to pass. If you think masks are bunk and promoting vaccinations is a misspending of tax dollars, then you are in lockstep supporting this measure. If you believe Governor Sununu acted as a tyrant issuing executive orders limiting the size of public assembly at the start of the pandemic, then you love this soon-to-be civil liberties law.
House bill HB440, also known as the Civil Liberties Defense Act, grew out of a March 2020 New Hampshire Superior Court case, Binford v. Sununu. Early in the pandemic Governor Sununu declared a state of emergency in New Hampshire to proactively combat the inevitable arrival of the COVID-19 pandemic. One of the emergency measures was to restrict public assembly to 50 persons. Immediately, the governor was sued for violating citizen rights to freely assemble.
The Civil Liberties Defense Act is a good barometer measuring how COVID has influenced politics in the Granite State. Libertarian activists have a bee in their bonnet concerning what they consider to be government overreach in protecting public health during the pandemic.
Two years ago it would have been unimaginable, even in New Hampshire, that a small band of all-in Libertarians would be the tail-wagging the political dog in state politics. It’s not that these folks did not have a voice before COVID. It is more that folks did not take their legislative agenda seriously. Who in New Hampshire is in favor of trampling on civil liberties? Nobody. So what happened with Binford v. Sununu?
The Superior Court ruled that the governor did have the authority to limit the number of people publicly gathering given the emergence of COVID-19 and the virus’s ease of transmission and increasing hospitalizations and deaths. Binford argued that at the time the State of Emergency was declared, only 17 people had contracted COVID in the state, and thus no emergency condition existed. The court ruled the following.
It would be irrational to find that the governor must wait for the health care system of New Hampshire to be overwhelmed with patients suffering from COVID-19 before he is authorized to declare a state of emergency and take preventative measures to slow the spread of a highly contagious and potentially deadly disease. Indeed, RSA 4:45 contemplates the need to take preemptive action and explicitly authorizes the governor to do so. Specifically, RSA 4:45, I permits the governor to declare a state of emergency where a disaster is "imminent or has occurred within this state."
The court concluded that no facts were evident that Governor Sununu had declared a state of martial law in issuing his emergency order. The court cited the 1996 Avino decision from the 11th Circuit Court to support Sununu’s emergency order. In Avino, the court supported the Florida governor’s Executive Order establishing a curfew in the wake of Hurricane Andrew.
The court ultimately concluded that under extreme emergency circumstances, “fundamental rights such as the right of travel and free speech may be temporarily suspended”.
So the court found that Governor Sununu’s Executive Order was done in good faith, factually supported by circumstance, was limited and well defined, of short duration, and met legal muster. Additionally, the state legislature had sufficient means to challenge and end the state of emergency.
The Superior Court correctly found the governor’s Executive Order declaring a state of emergency legal and an appropriate response to protect public health.
This month our Republican-controlled state senate voted unanimously to pass The Civil Liberties Defense Act. Why did establishment senate Republicans support this legislation? On the face of it, the New Hampshire constitution already adequately protects citizens’ civil liberties, and Governor Sununu was returned to office in 2020 with over 65 percent of the vote. If the electorate thought Sununu a tyrant and his public health measures wrong-headed or ineffective, then he would not have been returned to office.
I think what is happening here is that a vocal minority has now gained an oversized influence on state Republican politics. It is easier to support what I consider an unnecessary civil liberties bill than to challenge an energized and vocal slice of likely Republican primary voters. There is no harm in passing the legislation, the Republicans reason, because a court could intervene if a similar emergency occurs in the future.
A real threat to government curtailment of civil liberties would meet with vigorous public outcry and, as a last resort, there is ample settled law for the courts to overturn real despotic rule.
New Hampshire’s experience is a cautionary tale for Republicans trying to survive primary elections here in 2022 and beyond. We are in for real polarizing politics in the next couple of years, but hasty decisions made in response to the pandemic will have long-lasting effects for future emergencies.
NH Superior Court - Binford v. Sununu
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