The dispute over a historical marker for labor activist and eventual communist Elizabeth Gurley Flynn should be settled by the state’s elected officials, not by judges in the courts, Attorney General John Formella contends.

Formella, on behalf of the state Department of Natural and Cultural Resources, additionally argued that a lawsuit filed against the state by local activists Mary Lee Sargent and Arnie Alpert should be dismissed because they lack the legal standing to bring the case to court since they suffered no harm.

“Plaintiffs are admirers of Elizabeth Gurley Flynn — a social and political activist born in 1890 in Concord, New Hampshire, and co-founder of the American Civil Liberties Union. But not everyone shares Plaintiffs’ fondness for Ms. Flynn,” Formella wrote. “She was an ardent communist — so much so, that the Soviet Union honored her with a state funeral in Red Square. She may be an influential historical figure, but Ms. Flynn is an undeniably controversial one, as well. Whether the people of New Hampshire want her Concord birthplace memorialized is a question of politics, not justice.”

Sargent and Alpert, represented by attorney Andru Volinsky, countered that they have every right to sue the state as they are the two individuals who researched Gurley Flynn and followed all the state’s rules in petitioning for the historical marker, which was placed on May 1 at the corner of Court and Montgomery streets in downtown Concord, near the site of her birthplace.

It was the state that broke its own rules when the governor ordered the marker’s removal two weeks after it was unveiled, they said.

“In its legal memorandum, the State acknowledges that the marker was removed due to political considerations, not on grounds of historical merit or accuracy,” said Sargent, who taught American history for several decades at colleges and universities. “That violates the statutes, rules, and principles which are supposed to guide the marker program.”

The green and white sign describing the life of Gurley Flynn quickly drew criticism from two Republican members of the Executive Council, the five-member body that approves state contracts, judicial nominees and other positions. They argued it was inappropriate given Flynn’s communist involvement.

A right-to-know request filed with the state revealed a text message from Division of Historical Resources director Ben Wilson on May 15, the day the marker was removed, saying, “The Governor had DOT remove the marker in the middle of the night last night.”

“Our argument is that the Commissioner’s authority is constrained by the statutes governing the marker program and by her department’s own rules, which she failed to follow,” Alpert said.

Sununu’s spokesperson, Ben Vihstadt, said at the time that all policies and guidelines were followed in removing the “controversial marker,”

Known as “The Rebel Girl” for her fiery speeches, Flynn was a founder of the American Civil Liberties Union who advocated for women’s voting rights and access to birth control. The marker also says she joined the Communist Party in 1936 and was sent to prison in 1951. She was one of many party members prosecuted “under the notorious Smith Act,” the marker says, which forbade any attempts to advocate, abet or teach the violent destruction of the U.S. government.

Flynn later chaired the Communist Party of the United States and she died in Moscow during a visit in 1964, at age 74. Her marker was one of 278 across the state that describe people and places — from Revolutionary War soldiers to contemporary sports figures.

Under the current process, any person, municipality or agency can suggest a marker as long as they get 20 signatures from New Hampshire residents. Supporters must draft the marker’s text and provide footnotes and copies of supporting documentation, according to the state Division of Historical Resources. The division and a historical resources advisory group evaluate the criteria.

“There is no doubt that Elizabeth Gurley Flynn’s place in history is secure,” said Sargent. “What is in dispute is whether the state’s historical marker program will live up to its purpose: educating the public about New Hampshire’s history.”