GSP Testimony on NH Supreme Court Chief Justice Nominee Gordon MacDonald

Testimony on NH Supreme Court Chief Justice Nominee
Gordon MacDonald
Executive Council, January 21, 2021

My name is Zandra Rice Hawkins and I am the Executive Director of Granite State Progress, an advocacy organization working on issues of immediate state and local concern. I am here today to in opposition to the nomination of Gordon MacDonald for Chief Justice.

19 months ago, our organization testified during the first hearing on this nominee and raised concerns and questions that have yet to be answered in the last year and a half. Many of these concerns centered around Mr. MacDonald’s previous work in partisan positions and serving as a Board member and officer for the conservative Josiah Bartlett Center during the time in which the Bartlett Center advocated in opposition of Affordable Care Act implementation, Medicaid expansion, RGGI and renewable energy projects, and in support of school privatization, right to work, and significantly changing public pensions.

Given Mr. MacDonald’s past role here, it is important for the public to know his position on high profile issues that may very well come before the Supreme Court in the near future.

For example, what is Mr. MacDonald’s legal opinion on the intersection of government and health care? As Attorney General, Mr. MacDonald pursued a burdensome work requirement for low-income Granite Staters enrolled in Medicaid expansion, even as a similar policy in other states was struck down in the courts, and even after New Hampshire’s own law was invalidated by a federal judge. Mr. MacDonald continued to press forward to overturn precedent as recently as last August, during the middle of a public health and economic crisis when many Granite Staters were out of work and relying on Medicaid expansion for critical health coverage.

It is possible Mr. MacDonald felt obligated to waste state resources in pursuing this matter. But it does not go unnoticed that MacDonald served in the leadership of an organization that had strong opinions on this issue, and that he used the resources of his office to pursue it even after a federal judge struck it down.

In contrast, 17 other states joined together in April 2018 to defend the Affordable Care Act from attempts to undermine it in the courts. It would be nearly two years later before New Hampshire would join, after Governor Chris Sununu reportedly ‘directed” the AG’s office to join. What was Mr. MacDonald’s decision-making process that led him to delay in protecting Granite Staters’ health care, and were politics involved in the decision to join belatedly?

Mr. MacDonald testified that a Supreme Court judge must uphold the law regardless of his personal views, and that a judge needs to be fair and impartial. Since Mr. MacDonald has zero experience as a judge, and we have no previous court decisions or approaches upon which to draw conclusions about his suitability for Chief Justice, we must look at what we do know about Mr. MacDonald.

As Attorney General, MacDonald Reversed Office’s Position on SB 193,

School Voucher Bill Despite Clear Unconstitutionality

One clear example is Mr. MacDonald’s decision as Attorney General to reverse the department’s position on SB 193, a bill designed to divert public taxpayer dollars to private and religious schools in the form of school vouchers, despite its clear unconstitutionality.

Twice in April 2017 – immediately before MacDonald took over as Attorney General – the AG’s Office testified that “there are two provisions in the New Hampshire Constitution … that say that tax dollars cannot be used in New Hampshire to support schools of sectarian organizations.”

However, in December 2017, the AG’s Office sent a two-sentence email to the Speaker of the House opining that SB193 was constitutional – and referenced a discussion with Attorney General MacDonald.

The NH ACLU and several editorial boards questioned that judgement, citing that SB193 directly violated the NH Constitution and NH Supreme Court precedent restricting the use of public funds for religious schools. The criticism also noted that the email to the House Speaker was done outside of the normal avenue for legal opinions from the Attorney General’s office and was a reversal from the position the Attorney General’s office took in the time period before MacDonald took office.  (InDepthNH, 1.2.18; Valley News, 1.16.18, Concord Monitor, 1.4.18)

The Concord Monitor editorial stated, (quote) “It will be up to the state Supreme Court to decide which opinion is correct should the bill become law. State efforts to direct public funds to private schools, including religious schools, are being promoted nationally by school choice advocacy organizations.” (end quote)

Gordon MacDonald, of course, had served in leadership of just such an organization. It’s worth noting that a lawsuit is currently underway in New Hampshire on this very topic. If confirmed, does Mr. MacDonald plan to recuse himself from this case, and others like it that he has worked on?

As Attorney General, Mr. MacDonald did not recuse himself. Instead, he provided a contradictory legal opinion that overturned his office’s position, generating a new position in line with a special interest group on which he had served.

MacDonald Has Questionable Record on Reproductive Rights

Unfortunately, there are not isolated examples.

Mr. MacDonald stated that his personal opinions on reproductive rights – which he opposes – have no bearing on his ability to serve as a NH Supreme Court judge. But his track record as Attorney General shows that he does pick and choose which issues he advocates around, and that those positions tend to fall in line with his own past political involvement and beliefs.

Mr. MacDonald did not join the federal lawsuit challenging the constitutionality of the Trump Administration’s “domestic gag rule” altering the Title X family planning program. 21 other State Attorney Generals worked together to protect women’s health coverage, but not Gordon MacDonald.

It is not unreasonable to ask whether this track record is part of why Governor Chris Sununu was willing to hold this seat open for nearly two years in order to confirm Mr. MacDonald, or why Mr. MacDonald himself did not proactively withdraw his nomination in order to ensure our state’s highest court could run smoothly and fully seated.

But our last critique today may be our most important given what has happened in our country over the last week.

The violent insurrection that played out in Washington DC last week did not come out of the blue, and our forefathers put in safeguards to try to prevent us from getting to this dangerous place. But as Attorney General, Gordon MacDonald failed in his duty to follow the Constitution and enforce state law.

For months, MacDonald looked the other way as heavily armed militias – domestic terrorists – agitating for a second civil war openly recruited and organized in front of our State House. These paramilitary members posted disturbing memes that discussed making command detonators and conducting raids on public leaders, and some of its members were arrested in upstate New York last summer with AR-15’s, thousands of rounds of ammunition, and a tactical militia manual.

The New Hampshire Constitution forbids armed militias outside of state authority, stating: “[i]n all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power.” (N.H. Const. pt. 1, art. XXVI). New Hampshire law also prohibits private military units, making it illegal for groups of people to organize as private militias without permission from the state. (N.H. Rev. Stat. Ann. § 111:15)

Gordon MacDonald took no action here, nor when elected members of the NH State House seditiously declared both our elections and the State of New Hampshire terminated; nor did he use the power of his office to push back on the seditious Texas lawsuit seeking to overturn American election results, even as other AG’s rose to the defense of our democracy.

Why didn’t Mr. MacDonald vigorously uphold our Constitution and state laws? As Attorney General, he was in a position to affect real change here. The fact that he didn’t should concern all of us.

In Closing: We Oppose

In closing, we oppose the nomination of Gordon MacDonald. Our organization is willing to provide documentation for anything cited here today, and we urge the Executive Council to take the time to look into each of these issues before moving forward. Thank you.

ICYMI: Governor Chris Sununu Compares Racial Justice Protests to DC Insurrection, Calls Both “Extremism” in NHPR Interview

Sununu: “They are both completely inappropriate and appalling”

CONCORD, NH — In a NHPR Morning Edition interview just days before MLK Jr Day, Republican Governor Chris Sununu called some racial justice protests last summer a form of extremism on par with the recent violent attempted coup in DC. The interview comes a week after Sununu questioned the election integrity of other states during his inaugural speech and downplayed the responsibility of those rioting in DC.

Radio Excerpt: Governor Chris Sununu (R-NH) Calls Racial Justice Protests ‘Extreme’ ‘Appalling’ ‘Completely Inappropriate’ ‘Not Acceptable’

Chris Sununu: Sure. Look, I think, you know, I don’t think we’ll ever get a sense where the inauguration is done, we’re okay now. No, that would be very irresponsible. I think as a culture, as a society, we need things to kind of tamp down with the extremism, tamp down with the over-emotion and that kind of, not hyperbole, but that extreme response, one way or the other, where levers are getting pulled. And so I have confidence that as we come out of COVID, because I think it is related, like this isolation, these amped up feelings that we all had through 2020. It doesn’t just stop on a dime. We have to come out of it and we’re going to be prepared all the way through.

Rick Ganley: Are you equating, though, some of the extremism on both sides? Are you equating that extremism?

Chris Sununu: No, no, I wouldn’t equate it. They’re two very different things. What we saw over the summer with the cities burning, and all of that and the frustration there is very different. And frankly, an insurrection against the government, right? But they are both forms of extremism. They are both completely inappropriate and appalling. They’re not acceptable anywhere, has nothing to do with politics. It’s just completely unacceptable. It’s un-American.”

(NHPR Morning Edition, Sununu: It’s Time To Move On From Extremism In 2021, 1/15/21)

Granite State Progress Executive Director Zandra Rice Hawkins released the following statement: “Sununu continues his wink and nod to extremist factions, calling some of the Black Lives Matter response last summer ‘hyperbole’ ‘extremism’ and ‘over-emotion.’ The effort to dismantle white supremacy and stop the murder of black and brown people, and the frustration and pain driving it, is in no way comparable to a violent staged coup on our nation to overturn an American election and perpetuate those same problems. Sununu can’t claim he is not equating the two and then in the next breath do that very thing.”

Granite State Progress notes that Sununu has yet to call for the resignation of State Reps James Spillane (R-Deerfield) and Dawn Johnson (R-Laconia) who recently posted racist, anti-Semitic material; or for that of (6) Republican State Reps who declared the State of New Hampshire null and void.

Governor Chris Sununu – Dan Tuohy/NHPR


Granite State Progress Launches New Website

New website details examples of Gov. Chris Sununu’s long history of coddling white nationalism, violent rhetoric, and extremist movements

Chris Sununu and Free Stater Secessionist Carla Gericke campaign photo

CONCORD, NH — Granite State Progress released a new website today,, that details examples of Gov. Chris Sununu’s long history of coddling white nationalism, violent rhetoric, and extremist movements.

An op-ed from Granite State Progress along the same lines is running in newspapers this week.

Granite State Progress Executive Director Zandra Rice Hawkins released the following statement: “As our state and nation reel from the events of the past week, one thing is true – politicians who have enabled the growth of extremism need to be held accountable. Complicit Chris Sununu has looked the other way time and again on white nationalism, violent rhetoric, and extremist movements. Worse yet, Sununu has contributed to the growth and danger of armed threats in our state. We encourage Granite Staters to visit the website, complete with citations, to see the details first-hand.”

The website can be found at It includes examples of how Governor Chris Sununu and Attorney General Gordon MacDonald failed to uphold the NH Constitution and state law as armed militias openly recruited outside the New Hampshire State House this summer.


One Day After Insurgents Storm Nation’s Capitol, Governor Chris Sununu Questions Election Integrity of Other States During Inaugural Speech (Video)

CONCORD, NH — One day after insurgents stormed the nation’s capitol in an attempted coup, Republican Governor Chris Sununu questioned the election integrity of other states during his inaugural speech and downplayed the responsibility of those rioting in DC.

Video Excerpt: Governor Chris Sununu (R-NH) Inaugural Speech

(Governor Chris Sununu: 2021 Inaugural Address, Minute 18:52, 1.7.21)

“I do want to take a moment to address the 2020 election here in New Hampshire, as well as the complexity and the controversy we saw across this country surrounding the results; cumulating in the tragic events that unfolded yesterday in Washington. Across the country many states found their systems in turmoil, adding confusion and chaos to an already deepening public health crisis.

But here in New Hampshire we owe a debt of gratitude to all the town moderators, the volunteers, and our teams working with the Secretary of State Bill Gardner, and Attorney General Gordon MacDonald, for ensuring New Hampshire’s elections went off exactly as we needed them to. With integrity and accountability.

Granite State Progress Executive Director Zandra Rice Hawkins released the following statement: “Sununu continues his wink and nod to extremists by calling into question the integrity of other states’ elections and by downplaying the attempted coup in our nation’s capitol. This was an attack on our country, brought on by a president who refuses to accept the decision of the American people. Sununu should call it what it is: treason.”


Sununu Urgently Needs to Increase Response to Child Care During Coronavirus Public Health Crisis

Viability of New Hampshire child care centers and the ability for front line workers across the state to go to work is in serious jeopardy without urgent, strong leadership from the top

CONCORD, NH – Governor Chris Sununu urgently needs to improve state response to child care coverage during the coronavirus public health crisis.

On Sunday, Governor Sununu and Education Commissioner Frank Edelblut closed schools statewide, stating they had addressed issues like child care. In multiple press appearances since that time, Sununu has echoed the same message: that child care is under control, that centers need to stay open to provide coverage for critical workers, and that the state is allowing existing daycares to expand and new ones to open within businesses. In response to a reporter question during Thursday afternoon’s press briefing, Governor Sununu maintained his position again.

Sununu’s approach ignores the reality facing Granite State families with children:

  • Across the state, major and home-based child care centers have closed to ensure the health, safety, and well-being of both children and providers.
  • School closures mean that thousands of elementary school-aged children now need *new* child care coverage during school hours.
  • Critical workers in health care, police and fire, long-term care, food distribution, and other front-line coronavirus responders may be without adequate child care coverage.
  • Single-parent or double-critical worker families are especially vulnerable.
  • Grandparents who may usually provide back-up care for certain families are in a high-risk population for COVID-19.
  • It does not make sense to close schools and keep large child care classroom sizes, or shift thousands of additional school-age children into existing child care centers without additional support and modification.

Statement from Granite State Progress Executive Director Zandra Rice Hawkins:

“Governor Sununu urgently needs to improve his response to child care supports and infrastructure to ensure our state is in a strong position during and after the coronavirus. Closing schools but keeping children in large child care centers or seeking to expand those centers simply defeats the goal of closing schools. If schools should be closed for social distancing, then we need to look at all spaces where large groups of children and parents congregate. Instead, Governor Sununu continues to ask daycares to stay open and even expand, without any consideration to the health and safety of our children, families, and the staff. We need swift and proactive steps to ensure child care for critical workers who need coverage but without assuming we can or should shift potentially thousands of children into child care right now. This requires a state-led response. These are unprecedented times so there is no expectation that we will get everything right the first time, but it’s been almost a week since these concerns were first raised and the fact that Governor Sununu continues to repeat the same inadequate approach makes us worry he actually does believe this matter is resolved. Essential workers across the state are struggling with how to do their job and keep their children safe at the same time.”

Policy Options for the State

The National Association for the Education of Young Children has important guidance for how we should proceed with child care, and other states such as Massachusetts and North Carolina are implementing parts of that guidance, including coordinating child care coverage for critical workers, sometimes by utilizing closed school buildings and furloughed after-school program coordinators or child care staff from closed daycares. Any State of New Hampshire plan created should be developed in cooperation with public health and child care experts, and include relevant stakeholders to ensure strong insight and collaboration. It also needs to take an expansive look at “critical workers” in the time of coronavirus, which right now include grocery store staff and others.

Short and Long-Term Stability

Governor Sununu also needs to take immediate steps to ensure the stability of our child care centers throughout this crisis. Nationally, 30% of child care providers say they cannot survive a closure of more than two weeks without significant public investment and support that would allow them to compensate and retain staff, pay rent or mortgages, and cover other fixed costs. Without urgent attention, child care coverage in New Hampshire could be decimated in the short and long-term.


Granite State Progress is a multi-issue advocacy organization that addresses issues of immediate state and local concern.