The New Hampshire primary, known for being the first in the nation, is now at the forefront of an untested legal theory that questions Donald J. Trump’s eligibility to appear on the ballot under the 14th Amendment of the U.S. Constitution. A relatively unknown presidential candidate has filed a lawsuit in state court seeking to prevent Trump from appearing on the ballot. Additionally, a former Republican candidate for Senate is urging the secretary of state to bring a case that could potentially reach the U.S. Supreme Court.
Free Speech for the People, a liberal-leaning group, recently sent a letter to the secretaries of state in New Hampshire, Florida, New Mexico, Ohio, and Wisconsin, urging them to disqualify Trump from the ballot under the 14th Amendment. This theory, gaining traction among liberals and anti-Trump conservatives, argues that Trump’s actions on January 6, 2021, should disqualify him under Section 3 of the 14th Amendment. This section bars individuals from holding office if they have engaged in insurrection or rebellion against the Constitution after taking an oath to support it.
Prominent conservative law professors have bolstered this theory with an article, further fueling its momentum. However, even proponents of disqualification acknowledge that it faces long odds in court. If a secretary of state decides to strike Trump’s name from the ballot or if a voter lawsuit moves forward, Trump’s campaign will likely appeal the decision. This could potentially lead to the Supreme Court, where the conservative majority includes three justices nominated by Trump.
The case’s journey to the Supreme Court would ultimately test the justices’ commitment to the principles of law. Laurence H. Tribe, a constitutional law professor at Harvard, believes that justices would recognize the significance of denying the leading candidate of a major political party from eligibility. Nonetheless, the chances of success for the disqualification theory remain uncertain.
Though the discussion surrounding the 14th Amendment is growing across the country, New Hampshire has emerged as the primary battleground. The state’s Republican Party has vowed to challenge any attempts to remove Trump or any other qualified candidates from the ballot. They assert that the people of New Hampshire should have the final say on who becomes the nominee.
Bryant Messner, a former Trump-endorsed candidate for U.S. Senate, has met with New Hampshire’s secretary of state to push for legal guidance on the issue. He aims to create case law, but he intends to wait for the secretary of state to open the candidate filing period before filing a legal challenge.
The precedent for this debate is far from settled. A case initiated against Representative Madison Cawthorn of North Carolina ended with a district court judge, appointed by Trump, ruling in Cawthorn’s favor. However, the U.S. Court of Appeals later overturned that decision, pointing out that the Amnesty Act of 1872 nullified the ban on insurrectionists.
Advocates of the disqualification clause express concerns that cases against Trump may be delayed until criminal cases charging him with overturning the 2020 election are resolved. The outcomes of those cases in Fulton County, Georgia, or Washington, D.C., could impact the disqualification argument.
Secretary of State Brad Raffensperger of Georgia looks to prior cases involving Representative Marjorie Taylor Greene to guide his office. He believes that voters are smart and should have the right to decide elections. Similarly, other secretaries of state are seeking legal guidance and plan to follow their respective state laws in handling challenges to candidates’ qualifications.
Since January 6, there has been one case that invoked the 14th Amendment to remove a county commissioner in New Mexico convicted of participating in the Capitol riot from office. This case set a precedent by utilizing a constitutional ban on insurrectionists serving in public office and marked the first time in over a century that a public official faced such consequences.
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