NH civil rights advocates eye precarious balance of executive power during pandemic

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Original reporting from the

The American Civil Liberties Union of New Hampshire, the Libertarian Party and others are keeping a close eye on the broadening reach of state government to make sure civil rights are not overly infringed and resources are fairly distributed.

ACLU-NH Political Director Jeanne Hruska said the organization’s national office is tracking COVID-19-related executive actions 24 hours a day, and the state’s chapter is doing much the same.

ACLU-NH Political Director Jeanne Hruska. Courtesy Photo

“I would say, broadly, anytime there’s an emergency like this you usually see an expanded role for government, and any time government expands there’s always a concern for civil liberties,” Hruska said.

Four days after New Hampshire entered a state of emergency, the ACLU-NH posted a list of issue areas the group intends to watch closely, saying any response by the state needs to be grounded in science and public health and is “no more intrusive on civil liberties that is absolutely necessary.”

The organization focused on vulnerable populations, such as people in prison and jails, folks without health insurance or financial means and immigrants. 

Specifically, they’re hoping to make sure people in prison and jail have access to hygiene products and timely medical care and that COVID-19 is not used as an excuse for prolonged lockdowns in prisons.

The ACLU is also looking at making sure people without insurance can still get access to treatment and testing when necessary, that proper due process is available for individuals to challenge any mandatory quarantines, and that all eligible voters will be able to vote without fear for their wellbeing.

For inmate populations, the ACLU-NH and the NH Association of Criminal Defense Attorneys teamed up to draft a letter calling for officials to take steps to protect at-risk individuals by limiting the number of people being arrested and detained, and by removing seniors 65 or older, and people with compromised immune systems or other underlying conditions from the general prison populations.

So far, Hruska said they are encouraged by the response from the Department of Corrections, but would like to see more leadership from the courts and more public support from political leaders.

Hruska said there haven’t been any mandatory quarantines yet; only voluntary ones so far, to her knowledge.

Moving forward, she hopes to get more information from the state Department of Health and Human Services about what data is being collected regarding the distribution of resources, which she hopes will also include data about patient ethnicity to ensure that COVID-19 does not have a disproportionate impact on communities of color.

Some anxieties around voting were relieved when Secretary of State Bill Gardner and Attorney General Gordon MacDonald issued a guidance Friday allowing for anyone to use an absentee ballot under the auspices of a physical disability or employment commitments. 

“Wisconsin scared a lot of us. It should have scared all of us,” Hruska said.

The ACLU applauded the memo, but said they’re still looking for guidance on voter registration so people can register remotely.

In some ways, civil rights have already been limited, according to Richard Hesse, professor emeritus at UNH School of Law.

Hesse, who specializes in constitutional law and international human rights, said Gov. Chris Sununu has issued orders that have infringed constitutional rights to assemble by prohibiting gatherings of 50 or more and subsequently calling on residents to stay at home, and impacted property rights by shutting down non-essential businesses.

“One hopes that people in control of the executive power are very careful in making sure their actions are justified,” Hesse said.

Richard Hesse, UNH Law professor.

He said the COVID-19 pandemic may provide sufficient justification for the orders so far, but he said people must remain vigilant because executive powers may yet overreach as the crisis worsens.

“The more cases of COVID-19 that emerge, and the more deaths that occur at the state level, the stronger the governor’s hand for imposing limits,” Hesse said. “During that period of time you’re going to have interference with rights that, once interfered with, it’s like trying to put the toothpaste back in the tube.”

Libertarians in the state have taken the stance that executive orders are unnecessary since the incentive for self-preservation and the “weight of another’s life in your hands” is enough to encourage people to take the necessary precautions.

This is an unprecedented abridgment of civil rights on everyone,” said Brian Shields, Chair of the Libertarian Party of New Hampshire. 

Shields said his greatest concern is the inability for the legislature to meet and pass emergency legislation, effectively concentrating all the government power in the executive branch.

“New Hampshire is essentially living under a benevolent dictator,” Shields said. “If it was anyone but Sununu as governor I would be scared for the future of the live-free-or-die state. It still sets a dangerous precedent. The only check and balance on the Governor are the judges he appointed. That is an incredible flaw in our system of government and is frightening if that power ever gets in the wrong hands.”

Other states haven’t been so lucky, Shields said.

Brian Sheilds, Chair of the Libertarian Party of NH.

“Some states are enacting martial law with a sugar candy coating. Thankfully, Governor Sununu has taken a more voluntary approach and hasn’t been strong on enforcement,” Shields said.

While no one is accusing Sununu of abusing his power, the risk of it happening is not far from the minds of civil rights advocates.

“History shows that government power is ripe for abuse during public emergencies,” Hruska said.

For his part, Hesse said he’s more concerned about the abuse of power at the federal level than at the state level. 

While he thinks President Trump has demonstrated a propensity to act in a self-interested manner, history has examples of other presidents issuing unconstitutional orders during a crisis, such as when Lincoln effectively seized the Maryland legislature to prevent it from seceding during the Civil War.

Hesse said Lincoln’s order was challenged and overruled by a federal court, which he then ignored. Eventually, Congress ratified his decision.

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org

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Ryan Lessard

Ryan Lessard is a freelance reporter.