On the trail: Push to bump Trump from NH primary ballot derailed


For the Monitor

Published: 09-13-2023 4:14 PM

New Hampshire’s top election official says no legal basis exists to block former President Donald Trump from the ballot in the Republican presidential primary.

At a news conference Wednesday at the State House in Concord, Secretary of State Dave Scanlan also announced that the filing period for the 2024 presidential primary would start on Oct. 11, leading to a contest that will likely be held in late January and paving the way for New Hampshire to be penalized by the Democratic National Committee for being out of compliance with the party’s preferred nominating calendar.

But the news regarding Trump dominated the day as Scanlan addressed recent legal efforts by some Republicans in New Hampshire to prevent the former president from getting his name on the 2024 ballot. As long as Trump “submits his declaration of candidacy and signs it under the penalties of perjury, pays the $1,000 filing fee, his name will appear on the presidential primary ballot,” Scanlan said.

“That language is not discretionary,” Scanlan emphasized.

Ever since Trump launched his third straight presidential campaign last November, talk of invoking the 14th Amendment to keep him off the ballot has swirled. But with his recent indictments in federal court and in Georgia on charges he attempted to overturn the results of his 2020 election loss to President Joe Biden, the push gained momentum.

A legal advocacy group this summer sent letters to elections officials in nine states asking them to keep Trump from the ballot. And some prominent legal scholars have advanced the argument. 

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Bryant “Corky” Messner, an attorney and prominent Republican who won the 2020 Republican Senate nomination in New Hampshire thanks in great part to Trump’s support, has been mulling a lawsuit if Trump filed to put his name on the ballot.

Messner was very publicly questioning the former president’s eligibility to run for the White House, and cited Section 3 of the 14th Amendment of the U.S. Constitution. That section disqualifies those who’ve taken an oath to support the Constitution from holding office again if they’ve “engaged in insurrection or rebellion” against the U.S. “or given aid or comfort to the enemies thereof.”

Separate from Messner’s move, John Anthony Castro — a Texas-based attorney who’s running an extreme long-shot bid for the GOP presidential nomination — filed a lawsuit in a New Hampshire court that aimed to keep Trump off the primary ballot.  

Scanlan emphasized that “there is no mention in 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 referencing insurrection or rebellion.”

“There is nothing in the 14th Amendment that suggests that exercising the provisions of that amendment should take place during the delegate selection process as held by the different states,” Scanlan added. “There is nothing in our state statute that gives the Secretary of State discretion in entertaining qualification issues once a candidate swears under the penalties of perjury that they meet the qualifications to be president.”

Scanlan, a former Republican state lawmaker, also sought legal input from the New Hampshire Attorney General’s Office. A concurring statement from state attorney general John Formella came to the same conclusion.

State law “does not afford the Secretary of State discretion to withhold a candidate’s name from the ballot on the grounds that the candidate may be disqualified under Section Three when a candidate has not been convicted or otherwise,” Formella said.

Legal arguments in New Hampshire and a handful of other states across the country over the push to derail Trump’s name from the ballot may eventually make it to the U.S. Supreme Court, which has never ruled on the clause in Section 3 of the 14th Amendment.

“I think a decision on this requires a ruling from the United States Supreme Court to do anything differently than what we have planned here,” Scanlan said.

New Hampshire GOP chair Chris Ager, who attended the news conference, told this reporter that he was “very happy with the decision. It made a lot of sense to me the way the Secretary articulated the process and the decision-making, and now we can put the 14th Amendment to bed in New Hampshire and get back to campaigning.”

“I think it’s the right thing to do,” Ager added. “It gives clarity to what’s going to happen in New Hampshire.”

In addition, Scanlan announced that the filing period for presidential candidates to sign up to put their name on the New Hampshire ballot will kick off on Oct. 11 and conclude on Oct. 27. That’s about three weeks earlier than four years ago during the 2020 cycle, when the New Hampshire primary was held on Feb. 11.

New Hampshire for a century has held the first primary in the race for the White House. And while the Republican National Committee is not making any dramatic changes to its nominating calendar, the DNC overwhelmingly voted in early February to dramatically alter the top of its schedule for the 2024 election cycle, bumping Iowa and New Hampshire from their longtime leadoff positions.

But months later, there’s no resolution with New Hampshire or Iowa, and the party appears far from implementing its revamped primary schedule.

The push by the DNC to upend its primary calendar — in order to better reflect Black and Hispanic voters in the early primary contests — has been vigorously opposed in New Hampshire.

Democrats for years have knocked both Iowa and New Hampshire as unrepresentative of the party as a whole, for being largely White with few major urban areas. Nevada and South Carolina, which in recent cycles have voted third and fourth on the calendar, are much more diverse than either Iowa or New Hampshire. Nevada and South Carolina were added to the Democratic calendar nearly two decades ago to increase the diversity of the electorate from the early voting states.

The DNC overwhelmingly approved a calendar proposed by President Joe Biden to move South Carolina to the lead position, with a Feb. 3, 2024, primary. New Hampshire and Nevada are scheduled to hold primaries three days later, followed by Georgia on Feb. 13 and Michigan two weeks later. The president and supporters of the plan have argued that it would empower minority voters, whom Democrats have long relied on but have at times taken for granted.

But New Hampshire has a nearly half-century-old law that mandates that it hold the first presidential primary, a week ahead of any similar contest.

The DNC extended an earlier deadline until Sept. 1 for New Hampshire to come into compliance or face getting booted from the early state window for the 2024 cycle.

To comply, New Hampshire needs to scrap its state law protecting its first-in-the-nation primary status and must expand access to early voting. But with Republicans in control of New Hampshire’s governor’s office and both houses of the state legislature, state Democrats have repeatedly argued that’s a non-starter.

“I’m just assuming we’re going to be in noncompliance with the Democratic National Committee,” Scanlan told this reporter. 

And pointing to a DNC Rules and Bylaws Committee meeting on Thursday when New Hampshire may be found non-compliant, Scanlan emphasized that “we’ll see what comes out of that. But that’s not going to affect what we do in New Hampshire at all.” 

If New Hampshire is ruled non-compliant, the state could lose half of its delegates to next summer’s Democratic presidential nominating convention, under DNC penalties passed last year.

There are plenty of Democrats in Iowa and New Hampshire who see the upending of their leadoff positions as sour grapes from Biden, who finished a disappointing fourth in the 2020 Iowa caucuses and fifth in the New Hampshire primary before a second-place finish in Nevada and a landslide victory in South Carolina propelled him toward the nomination and eventually the White House.

Scanlan didn’t set the date of the primary, just the filing period — but the dates of the filing period are in line with a primary that could be held on Jan. 23, eight days after Iowa’s GOP presidential caucus.