The top election official in New Hampshire, which traditionally holds the nation’s first presidential primary, announced that he would consider banning former President Donald Trump from the ballot one day after a George Washington University law professor suggested that he call a special panel to make the determination.
The same official kept lawmakers in suspense about his pending decision on Trump’s access to the New Hampshire ballot, according to emails and other communications obtained by The Daily Signal.
New Hampshire Secretary of State David Scanlan, a Republican, decided against blocking Trump’s ballot access even as many Democrats and liberal groups insisted that a clause in the 14th Amendment disqualifies Trump from being president and pressured election officials like him across the country to act.
Section 3 of the 14th Amendment bans anyone who participated in an insurrection from holding certain federal offices. Although other top state election officials across the country also face pressure on the ballot access issue, New Hampshire plays a coveted role in the election of presidents.
Under New Hampshire’s public records law, The Daily Signal obtained almost 1,200 pages of documents from the New Hampshire secretary of state’s office regarding deliberations on whether to bar Trump from the state’s primary ballot–and potentially the general election ballot.
The documents obtained by The Daily Signal include law review articles, news accounts, and hundreds of emails from across the United States. The email response overwhelmingly was opposed to blocking Trump’s ballot access, but many urged Scanlan to cite the 14th Amendment to prevent Trump from running in New Hampshire.
With no conviction on a charge of insurrection, Trump has a right to due process before a state could remove him from the ballot, argued John Banzhaf, a public interest law professor at George Washington University.
Banzhaf sent a memo to Scanlan on Aug. 28, with a copy to New Hampshire Attorney General John Formella, also a Republican. The two GOP officials announced the next day they were reviewing the matter.
A spokesperson for the New Hampshire Attorney General’s Office told The Daily Signal that Banzhaf’s legal analysis was unsolicited. Asked about any correlation, since it arrived a day before the joint press release announcing a review, the spokesperson said, “None.”
In his legal analysis, Banzhaf wrote, referring to Trump:
With all due respect to my learned colleagues on both sides of the debate (NO, he can’t be listed vs. YES, he can be listed), I believe that neither suggested interpretation is correct, and that the correct interpretation of Section 3—based upon its clear language—requires that your decision depend upon the evidence adduced at an adjudicatory hearing providing due process for Trump.
GWU’s Banzhaf said New Hampshire should hold a civil “adjudicatory proceeding” where accusers could provide evidence that Trump engaged in an insurrection and Trump, through legal counsel, could present a defense.
“The reason why you cannot lawfully remove his name from the ballot in the absence of an adjudicatory due process hearing is that the Fourteenth Amendment provides that ‘nor shall any State deprive any person of life, liberty, or property, without due process of law,’” Banzhaf’s legal analysis says.
Section 3 of the 14th Amendment reads:
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, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
Trump has alleged that his 2020 reelection loss to former Vice President Joe Biden was the result of a “stolen” election and challenged the outcome.
In recent weeks, the 45th president has been indicted on federal conspiracy charges in Washington, D.C., and on state racketeering charges in Georgia. Both indictments allege that Trump broke the law in challenging the election outcome.
Neither indictment alleges that Trump engaged in insurrection. The Democrat-controlled House impeached Trump in January 2021 for incitement to insurrection, but the Senate acquitted him after a trial.
Banzhaf’s analysis continues: “In summary, I would most respectfully suggest that Section 3 [of the 14th Amendment] requires Trump’s disqualification, but only if there is proof, presented in an adjudicatory legal proceeding during which Trump is entitled to due process, which establishes that he did in fact engage in insurrection.”
The day after GWU’s Banzhaf submitted the memo, on Aug. 29, Scanlan and Formella issued a joint press release announcing that both of their offices were “carefully” reviewing the legal question. It reads:
Both the Secretary of State’s Office and the Attorney General’s Office are aware of public discourse regarding
the potential applicability of Section 3 of the Fourteenth Amendment to the United States Constitution to
the upcoming presidential election cycle, including misinformation asserting or implying that the Secretary of
State’s Office has already taken a position on or is seeking to take certain action with respect to Donald Trump’s candidacy for the Republican National Convention’s nomination for president in the 2024 United States Presidential Election.
In an Aug. 31 press release, GWU’s Banzhaf promoted the need for an “adjudicative due process hearing” in New Hampshire to determine whether Trump could remain on the ballot.
On Sept. 5, state Rep. Sandra Panek, a Republican, wrote in an email to Scanlan, the secretary of state: “The citizens of NH clearly see this is a weaponization of our judicial system.”
Panek also wrote: “Trump has NOT been charged with engaging in insurrection or rebellion against the United States.”
The state lawmaker added: “I have faith that you will be able to see through all of this. This is the type of weaponization that a Banana Republic engages in.”
Scanlan didn’t reply to Panek that he had yet to decide, only that he hadn’t “stated” his position.
“Sandra, thank you for your email. I have not yet stated what my position will be,” the New Hampshire secretary of state wrote Sept. 5. “But I have been reviewing the Article 14 issue, and expect to make a statement within a week or so. Lawsuits have been threatened on both sides of the issue, so I want to make sure my reasoning is sound.”
As a nudge, the next day Panek sent Scanlan a copy of an op-ed by Georgia Secretary of State Brad Raffensperger, a fellow Republican, that appeared that same day in The Wall Street Journal under the headline: “I Can’t Keep Trump Off the Ballot.” Voters should decide, Raffensperger argued in the op-ed.
“Here’s a good article from The Wall Street Journal,” Panek wrote to Scanlan. “The Georgia SOS [secretary of state] states why he won’t keep Trump off the ballot. I like his reasoning. I’m sure you will agree.”
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