By Naveen Athrappully
Republican Bryant “Corky” Messner’s attempt to prohibit former President Donald Trump from New Hampshire’s 2024 primary ballot is receiving a cold shoulder from the state’s top GOP leaders.
Mr. Messner insists that President Trump is disqualified from running for the 2024 presidential race due to the 14th Amendment of the U.S. Constitution. Section 3 of the amendment, enacted in the wake of the Civil War, bars a citizen from holding office if they have engaged in “insurrection or rebellion” against the United States “or given aid or comfort to the enemies thereof.”
Mr. Messner, who won the 2020 Republican Senate nomination in part due to President Trump’s support, is considering a legal path to prevent the former president from becoming the 2024 Republican nominee. However, GOP state party officials are staying clear of Mr. Messner’s attempt to block President Trump.
New Hampshire’s Republican Gov. Chris Sununu, a vocal critic of President Trump, has clarified that he will not be involved in the issue.
“The Governor first heard about this effort over the weekend. The Governor is not making any attempt or assisting any effort to keep anyone off the ballot,” Mr. Sununu’s spokesman told Fox News in a statement.
“He has not spoken to and has nothing to do with Mr. Messner’s actions … Providing he (Trump) follows the same rules as all other candidates, the Governor doesn’t expect ballot access will be a problem for the former president.”
Mr. Messner has met with New Hampshire’s Republican Secretary of State Dave Scanlan who is responsible for overseeing elections in the state.
In an Aug. 29 news release, Republican Attorney General John M. Formella and Mr. Scanlan said that neither of their offices have “taken any position regarding the potential applicability of Section Three of the Fourteenth Amendment to the United States Constitution to the upcoming presidential election cycle.”
Mr. Scanlan’s office requested Mr. Formella’s office to advise them “regarding the meaning” of Section 3 and the provision’s “potential applicability” for the 2024 elections. “The Attorney General’s Office is now carefully reviewing the legal issues involved.”
Chris Ager, the state GOP chairman, called Mr. Messner a “friend” whose opinions and judgment he respects. “But I totally disagree with him on this issue,” he said, according to Fox News.
“I have communicated with Secy. Scanlan and I’m confident that all the current people listed as presidential candidates—I’m very confident that all of them, should they apply—would be on our ballot.”
Legal Debate Over Trump’s Qualification
Some legal scholars claim that the 14th Amendment could be used to block President Trump’s reelection bid for 2024.
In a recent paper at the University of Pennsylvania Law Review, a group of conservative scholars argued that Section 3 of the 14th Amendment “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
The scholars insisted that Section 3 is “self-executing” and operates as an immediate disqualification from office without requiring any additional action from Congress.
Section 3 also “supersedes” many other constitutional rules in case of conflict with them, including the due process clause and also the free speech provisions of the First Amendment, they said, while adding that the section remains an “enforceable” part of the Constitution not limited by the Civil War.
However, some have pointed out that using the 14th Amendment to block President Trump’s reelection bid may not be possible.
In an Aug. 14 newsletter, legal expert Alan Dershowitz said that a “fair reading” of the history of the 14th Amendment would make it clear that the law “was intended to apply to those who served the Confederacy during the Civil War.”
“It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.”
“If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures, and the criteria for making so important a decision.”
However, the law provides no such mechanism for determining whether a candidate is disqualified, he said. Mr. Dershiowitz warned that if President Trump were to be disqualified from running for the 2024 election by any individual or institution linked to Democrats and the matter is not resolved by the Supreme Court, “there would be a constitutional crisis.”
“The Constitution articulated limited qualifications for presidential eligibility. Beyond those neutral criteria, the decision should be made by voters, who are free to consider the participation of a candidate in activities with which they disagree,” he stated.
In an interview with CBS back in 2021, Senate Majority Whip Dick Durbin (D), who had voted to convict President Trump in the impeachment push following the Jan. 6 incident, had also raised doubts about using the 14th Amendment against the former president.
“Because the 14th Amendment is not explicit on how you determine whether someone participated in an insurrection,” he said. “If they had been convicted of that in a court of law, then I can understand how you can use it as a predicate for prohibiting people from running for office.”
“But there is a real serious question, if that conviction has not taken place, whether the Congress can have a finding, or the Senate can have a finding that they are guilty of insurrection and whether that’s sufficient. So, it’s unresolved.”
The Senate had acquitted President Trump from the impeachment charge of inciting an insurrection. Though there have been arguments that Congress could decide to bar him from elections through a simple majority in the House and the Senate, the U.S. Constitution prohibits such moves.