New Hampshire Secretary of State Speaks Out on 14th Amendment Challenge to Trump

Former U.S. President Donald Trump on stage before delivering remarks at Windham High School in Windham, N.H., on Aug. 8, 2023. Scott Eisen/Getty Images

New Hampshire Secretary of State David Scanlan said on Wednesday that there is no legal basis to keep former President Donald Trump off the 2024 primary ballot as he seeks reelection, based on the 14th Amendment.

“There is no mention in the New Hampshire state statute that a candidate in a New Hampshire presidential primary can be disqualified using the 14th Amendment of the United States Constitution mentioning insurrection or rebellion,” he told news outlets in a statement. “There is nothing in the 14th Amendment that suggests that exercising the provisions of that amendment should take place during the delegate selection process held by the different states.”

The 14th Amendment, ratified after the Civil War, gave equal protection under the law to all persons born or naturalized in the United States. It added a section that allowed the federal government to punish states that infringed on a citizen’s right to vote, and a third section that disqualified those who participated in the rebellion or insurrection against the nation to hold office, unless two-thirds of Congress made such an exception for the candidate.

Mr. Scanlan said that “nothing in our state statue that gives the secretary of state the discretion in entertaining qualification issues once a candidate swears under the penalty of perjury that they meet the qualifications to be president.” He added that once the candidate applies according to the proper procedures, their name “will appear on the ballot.”

He further added that “in a situation where some states permit a name to appear on the ballot and other states disqualify it, there’s going to be chaos, confusion, anger and frustration.”

Mr. Scanlan explained that the U.S. Supreme Court was the only authority that could make such a determination, and that a constitutional disqualification would have to apply “across the board,” in all 50 states or not at all.

“At a time when we need U.S. election officials to ensure transparency and build confidence among voters around the country, the delegate selection process should not be the battleground to test this constitutional question,” he added.

New Hampshire GOP Chairman Chris Ager told Fox News he thought the 14th Amendment arguments were “a complete waste of time” and that the party would have intervened in any legal action brought forth in the state.

“I’m glad that we’ve put it to bed here in New Hampshire,” he said.

Liberal groups have been trying to drum up support for the idea of barring President Trump from reelection, arguing that his actions on Jan. 6, 2021, constituted an insurrection or rebellion, which under the post-Civil War amendment would disqualify someone from holding office.

But secretaries of state have not warmed to the idea, arguing this is not within their jurisdiction.

Late August, Arizona Secretary of State Adrian Fontes said he could not remove President Trump’s name from the ballot under state law, while also calling the law “stupid“ because of its broad coverage.

Last week, Minnesota Secretary of State Steve Simon similarly said on NPR that this was also not something he had the authority to do, saying the state law instead allows “any individual“ to bring forth a petition, after which a judge could rule to strike a candidate from the ballot. Four days later, a liberal group filed such a suit.

Earlier, such a petition was thrown out in Florida after an Obama-appointed judge said she lacked jurisdiction.

In Colorado, a petition is still pending. Meanwhile, legal experts arguing for both sides of the issue.

Debate in New Hampshire

In recent days, arguments over disqualifying President Trump in the early primary state reached new heights.

A New Hampshire attorney, Bryant Messner, had brought the idea to Mr. Scanlan last month, leading to politicians voicing their support for or against the idea. Mr. Scanlan maintained that it was a decision for the courts, but by Tuesday, Sept. 12, the Trump Campaign sent a letter to his office signed by 81 New Hampshire state officials and former U.S. Senator Bob Smith.

“There is no legal basis for these claims to hold up in any legitimate court of law,” they wrote. “The opinions of those perpetuating this fraud against the will of the people are nothing more than a blatant attempt to affront democracy and disenfranchise all voters and the former President.”

They dismissed the 14th Amendment strategy as a political attack and “absurd conspiracy theory,” urging New Hampshire to live up to its historic patriotism by invoking the 1776 revolution.

‘Dangerous’ Precedent

The groups arguing that President Trump participated in an “insurrection” point to the Jan. 6, 2021, Capitol breach events and typically describe the motivations and events of the day in loaded terms. The Colorado petition cast it as a racially motivated event where black police officers were targeted, and the Minnesota petition called those present “attackers” and “the mob.”

Last month, President Trump was indicted for his contest of the 2020 election results in relation to his actions on Jan. 6.

However, the indictment does not charge him with insurrection, rebellion, or even inciting violence.

George Washington University law professor Jonathan Turley says the theory that the former president would then be disqualified from holding office is “not simply dubious but dangerous.”

“The amendment was written to deal with those who engage in an actual rebellion causing hundreds of thousands of deaths,” Mr. Turley told Fox News. “Advocates would extend the reference to ‘insurrection or rebellion’ to include unsupported claims and challenges involving election fraud.”

He pointed out that President Trump has not been charged with any of the things the advocates are accusing him of, much less convicted.