CONCORD, N.H. — A debate among constitutional scholars over former president Donald Trump’s eligibility for the 2024 presidential race has reverberated through the public consciousness in recent weeks and reached the ears of New Hampshire’s top election official.
Secretary of State David Scanlan, who will oversee the first-in-the-nation presidential primary in just five months, said he’s received several letters lately that urge him to take action based on a legal theory that claims the Constitution empowers him to block Trump from the ballot.
Scanlan, a Republican, said he’s listening and will seek legal advice to ensure that his team thoroughly understands the arguments at play.
“Not being a lawyer and not wanting to make a decision in a vacuum, I will be soliciting some legal opinions on what is appropriate or not before I make any decision,” he told the Globe.
“I have some in-house staff attorneys that are election experts,” he said. “I will be asking the attorney general’s office for their input. And ultimately whatever is decided is probably going to require some judicial input.”
A spokesperson for the New Hampshire Department of Justice said the attorney general hasn’t taken a position on these matters, but will review the relevant legal issues and provide guidance as Scanlan requested.
Two weeks ago, a couple of conservative legal scholars wrote a law review article that argues Trump’s efforts to overturn the 2020 election render him constitutionally disqualified from the 2024 race. They rooted their conclusion in the 14th Amendment, which bars sworn officeholders who “engaged in insurrection or rebellion” against the United States from holding office again. That provision, they contend, is “self-executing” and immediate: “It can and should be enforced by every official, state or federal, who judges qualifications.”
This idea was further popularized in The Atlantic a week ago, and it’s been discussed widely since, including during this week’s Republican presidential debate. Here in New Hampshire, the GOP’s 2020 nominee for US Senate, attorney Bryant “Corky” Messner, said in a radio interview Tuesday that he read about the legal theory and is now thinking about suing to ensure that Scanlan enforces the Constitution against Trump.
“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 said.
There are, of course, differing views. Some legal scholars say the Trump-is-already-disqualified camp overlooks relevant legal precedent. And even some who agree that Trump is disqualified argue that “advancing this argument in a legal challenge is a terrible idea” that “could end up further imperiling our already fragile republic.”
Scanlan said the former president — who faces four criminal indictments, including two that pertain to his attempts to subvert democracy after the 2020 election — is entitled to due process. And he said judges are better equipped than he currently is to determine whether the campaign that culminated in violence at the US Capitol on Jan. 6, 2021, triggers the 14th Amendment.
“I view the violence as being a really unfortunate event in our history,” he said. “I don’t know that I’m really qualified to say whether that was an ‘insurrection’ or not. I think that is for the courts to decide.”
This article has been updated to correct the office for which Messner ran in 2020. He ran for the Senate, not the House.