Trump eligible for ballot as far as N.H. election officials are concerned

Possible disqualification of the former president under Section 3 of the 14th Amendment would be a question for the courts, not secretaries of state, officials conclude

Former President of the United States Donald J. Trump waves to the crowd with Congressman Brian Mast at his side after concluding his remarks in Windham, N.H., at the Windham High School on Aug. 8, 2023. Erin Clark/Globe StaffErin Clark/Globe Staff

CONCORD, N.H. — Efforts to bar former president Donald J. Trump from the ballot won’t get a boost from state election officials in New Hampshire.

Secretary of State David M. Scanlan said Wednesday that it “does not make sense” to encourage the top election officials in individual states to rule separately on whether Trump’s involvement in the events that culminated in violence after the 2020 election render him constitutionally ineligible.

“In a situation where some states permit a name to appear on the ballot and other states disqualify it, chaos, confusion, anger, and frustration will be the result,” he said.

“New Hampshire has a proud tradition of welcoming all qualified candidates participating in a presidential primary, and that will continue here,” he added.

Scanlan said, based on guidance from New Hampshire Attorney General John M. Formella, that he doesn’t have the authority to judge a candidate’s qualifications under Section 3 of the 14th Amendment. Decisions about a candidate’s eligibility under that provision — which disqualifies sworn officeholders who “engaged in insurrection or rebellion” against the US from holding office again — are ultimately up to the US Supreme Court, he said.

New Hampshire Secretary of State David M. Scanlan, right, a Republican, speaks to reporters on Wednesday, Sept. 13, 2023, at his office in Concord, N.H., with senior deputy secretary of state Patty Lovejoy, a Democrat, by his side, regarding a dispute over former president Donald Trump's eligibility for the 2024 presidential election. Steven Porter/Globe Staff

Formella wrote a memo advising Scanlan that he doesn’t have a choice to deny ballot access to someone who meets the three parameters outlined in state law. The candidate must file a declaration of candidacy on time; include a statement attesting, under penalty of perjury, to their qualifications under Article II of the US Constitution; and pay the $1,000 filing fee.

Scanlan said his office has the authority to scrutinize situations in which a candidate may have falsely attested to their eligibility under the more-straightforward provisions of Article II, which stipulate that the president must be a natural-born citizen who’s at least 35 years old and who has been a US resident for at least 14 years.

“If there was reason to believe that somebody committed perjury and filed a declaration of candidacy, we would pursue that and determine whether that person is not qualified to run,” Scanlan said, noting that his office has taken such action in the past.

New Hampshire GOP Chairman Chris Ager said he was pleased with Scanlan’s decision and views this dispute over Trump’s alleged ineligibility under the 14th Amendment as “a complete waste of time.”

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

Ager added that the state party was prepared to intervene in any court case that sought to disqualify an otherwise-eligible Republican candidate from the ballot, but the announcement from Scanlan suggests the party can save some money on legal fees.

Scanlan’s announcement came a day after the Trump campaign sent a letter signed by dozens of GOP officials in New Hampshire urging the secretary of state to reject calls to disqualify the former president from the first-in-the-nation primary, which is less than five months away.

“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,” the letter states.

The letter was signed by Senate President Jeb Bradley, House Speaker Sherman Packard, two members of the state’s five-person Executive Council, and members of the state House and Senate.

Formella’s memo states that his conclusion “avoids potentially serious due process concerns” that could come up if Scanlan’s office were allowed to make unilateral disqualifications without either a legislatively authorized adjudicatory process, a conviction, or an adjudication in some other forum.

Two of the four pending indictments against Trump relate to his efforts to subvert democracy, which led up to a violent assault on the US Capitol that delayed the certification of Trump’s electoral defeat. And lawsuits have been filed in multiple states, including New Hampshire, that ask judges to weigh in on the 14th Amendment legal theory.

Scanlan’s remarks came as he announced the filing period for candidates who wish to appear on the ballot in the first-in-the-nation presidential primary for each party. The filing period will open on Wednesday, Oct. 11, and close on Friday, Oct. 27, he said.

The date of the primary itself won’t be scheduled until later, though Scanlan acknowledged that having a filing period in October has historically been correlated with having a primary in January, which is expected again in 2024.