“I will be asking the attorney general’s office for their input,” Secretary of State David Scanlan told the Globe. “And ultimately whatever is decided is probably going to require some judicial input.”
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.
Most of the legal minds I’ve heard discuss this think it’s pretty interesting philosophically, but not at all actionable. Former US attorneys Preet Bharara and Chuck Rosenberg mentioned it in a recent podcast that I found super insightful.
The only reason it isn’t actionable is because the SCOTUS’s current concept of standing leaves entire provisions of the Constitution unenforceable. If no one has standing to sue for an unconstitutional act or omission, then it renders the provision meaningless. Which is absolute and utter bullshit. Every single election official that lets Trump on the ballot should be sued in federal court seeking a writ of mandamus forcing them to follow the requirements set upon them under the Constitution.
Here’s the tiny mention in there:
Except that it very clearly is self-executing. I’ll paste it in here again for easy reference:
Breaking it down:
What is the disqualification from office stated in the section title? “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, …”
Who does this apply to? Anyone “who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
What is the remediation for this disqualification? “Congress may by a vote of two-thirds of each House, remove such disability.”
As a comparison, Article II, Section 1, Clause 5 reads:
If a 23 year old Frenchman decided to run for US President, what would happen? Would there need to be some kind of trial or judicial review? No - state officials would disqualify Mr. Young French from appearing on the ballot. And then, if Mr. Young French wanted to protest that decision, he would initiate a court filing, after having been disqualified.
14A S3 is self-executing. The reason Rosenberg in the podcast says he’s “not sure what the triggering mechanism would be” is because there isn’t one.
I’m a complete layman when it comes to law so forgive me if this is an ignorant question, but would the official in question have to be actually convicted of insurrection/rebellion before this comes into effect? I assumed that’s what they meant by “It’s not self executing” because otherwise would it not just be up to each state officials individual discretion to exercise this? Thanks so much for the detailed breakdown, Preets podcasts have turned me into a bit of an uneducated legal nerd so this is all fascinating to me.
IANAL, but I’d say yes. Conviction should be required, if it weren’t politicians could just accuse their opponents to disqualify them.
Unrelated, but is your name a psych reference??
You know that’s right
Come on, son!
Don’t be exactly half of an 11-pound Black Forest ham.
There is nothing in the text of the amendment which requires any criminal conviction, civil settlement, judicial review. If you’re interested in a really detailed breakdown and argument for why Trump (and many others) are disqualified from holding office, I highly recommend reading The Sweep and Force of Section Three, which was the paper that really set all of this 14A S3 discussion in motion. It is very long, and very detailed, but it’s a relatively easy read, in mostly plain language. I haven’t even gotten all the way through it yet, I’m still working on it. Much of my understanding of this issue comes from this paper, but believe me when I say I’m not just waving it aloft and declaring that it’s gospel. What it says makes sense.
With regard to your question about each state officials’ discretion to exercise, there’s another comment in this mess of a thread where I go into some more detail on that. I also made note somewhere that, because this is constitutional law, state officials who refuse or neglect to follow the Constitution may be in a position where they could be held personally responsible for failing to apply the law if they don’t disqualify people who are disqualified by 14A S3.
Edit: For the record, Rosenberg stated early in that podcast that he favored Ford pardoning Nixon. That pardon played a huge part in the situation we find ourselves in today. It set a precedent that presidents can commit crimes without consequences. We had an opportunity to set a fair and equal precedent, and we did not. Rosenberg being okay with kicking that can down the road doesn’t give me a great deal of confidence in his opinions.