A New Hampshire judge declined Tuesday to stop the secretary of state from reviewing a recount that helped edge the 400-member House closer to an even split.
Unofficial post-Election Day tallies showed 203 Republican winners and 197 Democrats, but the final balance of power has yet to be determined pending recounts.
In Manchester’s Ward 6, initial results showed Republican Rep. Larry Gagne defeating Democrat Maxine Mosley by 23 votes. A recount last week gave Mosley a win by one vote, but Secretary of State David Scanlan said the recount would continue this week because there was a discrepancy between how many ballots were counted during the recount and those counted during a separate audit.
That prompted Mosley and the state Senate’s Democratic leader, Donna Soucy, to file a lawsuit seeking an emergency order to stop the proceedings. But a judge denied their request Tuesday morning and ordered the state to review all votes cast in the race later in the day.
In her order, Merrimack County Superior Court Judge Amy Ignatius said Democrats had the law on their side, but that "this extraordinary circumstance requires an atypical remedy."
"Ordinarily the defendant does not maintain the authority to review a recount of an election. This matter stands apart from ordinary circumstances," she wrote.
The judge cited a previous ruling by the state Supreme Court that said the key question is not whether an election official has followed the law, but "what was the legally expressed choice of the voters?"
"A review of the recount tabulation is required to ensure the expressed will of the Manchester Ward 6 voters is heard and the candidate with the most votes is seated," Ignatius said.
Democrats had argued that Scanlan declared Mosley the official winner after the recount, and that state law permits a second recount only if an audit reveals a discrepancy greater than 1%, which wasn’t the case here. Scanlan argued that he ordered a "continuation of the count," not a "recount," and that vote tallies are not official until all reconciliation efforts are complete.
Mosley's attorney, Bill Christie, said though the judge made clear that his client was correct about the law, "at this time, we will proceed with the second recount to make sure that all rules are properly followed and that ballot security is protected."
Colin Booth, spokesman for the New Hampshire Democratic Party, said he was disappointed by the ruling.
"Throughout this process we have maintained that New Hampshire election laws do not allow for anyone, whether it be a political party or the secretary of state, to conduct recount after recount until they achieve their desired result," he said.
The state Republican Party, meanwhile, immediately sent a fundraising pitch asking supporters to donate to an "election integrity fund "so that we are further equipped to push back against the foreseeable future of Democratic voter disenfranchisement."
Control of the House has flipped in six of the last nine elections, most recently in 2020, when Republicans gained a 26-vote majority.