New Hampshire’s Republican secretary of state appears to be plotting to keep former President Donald Trump off the 2024 presidential ballot even though he has yet to be convicted of any crimes.
David Scanlan said he is consulting with the New Hampshire attorney general, John Formella, also a Republican, to see if it is possible to keep Trump off the ballot under a provision of the 14th Amendment.
“As secretary of state, Scanlan oversees New Hampshire’s first-in-the-nation presidential primary that will take place at the beginning of 2024. However, Scanlan has caught wind of scholars’ recent arguments that the Fourteenth Amendment’s Disqualification Clause prohibits Trump from being on the presidential ballot,” Breitbart News reported.
According to ABC7:
That disqualification argument boils down to Section 3 of the U.S. Constitution’s 14th Amendment, which says that a public official is not eligible to assume public office if they “engaged in insurrection or rebellion against” the United States, or had “given aid or comfort to the enemies thereof,” unless they are granted amnesty by a two-thirds vote of Congress.
Trump hasn’t even been charged with “insurrection,” much less convicted of it. But the effort to disqualify him from the ballot under the 14th Amendment was launched by left-wing organizations, so the GOP effort to use that argument to keep him off the New Hampshire ballot likely won’t sit well with Republican voters, especially since Trump has pulled out to such a large lead in most polls — a lead that has only grown after his indictments.
In New Hampshire alone, for example, Trump holds a 20-point lead over the next-closest rival, the latest Echelon Insights survey found.
“[Former Clinton administration labor secretary Robert] Reich was recently joined by legal scholars William Baude and Michael Stokes Paulsen, both Never Trump members of the otherwise conservative Federalist Society, who wrote in the University of Pennsylvania Law Review that Section 3 ‘disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,’” Breitbart reported earlier, noting that a growing number of legal scholars on the left and right are adopting the same argument.
Most recently, J. Michael Luttig and Laurence H. Tribe joined the chorus, writing in The Atlantic: “The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”
New Hampshire attorney Bryant “Corky” Messner, whom Trump previously endorsed in New Hampshire’s 2020 U.S. Senate race, appears to be the one who put the issue on Scanlan’s radar.
“I really don’t view myself as turning on Trump, as odd as that sounds,” Messner told ABC News. “I love this country. I’ve served this country. I’ve taken an oath to this country. My sons are serving right now and I believe someone’s got to step up to defend the Constitution.”
“Someone needs to take some action legally so this thing can get in front of the Supreme Court sooner rather than later to interpret this section,” he added.
Scanlan’s office verified that Messner and Scanlan met on Friday to deliberate over Section 3 of the Fourteenth Amendment. However, it was reported that the secretary of state intends to confer with the state attorney general before reaching any conclusions.
“Secretary Scanlan will be conferring with the New Hampshire Attorney General and other legal counsel on this issue; however, he believes any action taken under this Constitutional provision will have to be based on Judicial guidance,” Scanlan’s communications director Anna Sventek told ABC News.
Scanlan said he thinks that the January 6 Capitol riot was a “really unfortunate event in our history” but added that he is not “really qualified to say whether that was an ‘insurrection’ or not.”
“I think that is for the courts to decide,” Scanlan said.
Erica Carlin is an independent journalist, opinion writer and contributor to several news and opinion sources. She is based in Georgia.