“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.
14th Amendment to the US Constitution, Section 3:
This does not require judicial input. The language is clear. Trump is, along with many co-defendants, disqualified from holding any civil or military office.
“But that was only an amendment and it was written so long ago!” - Somebody with the second amendment printed out and framed above their gun masturbatorium.
The gun Masturbatorium is a sacred workshop of Cult Masturbatio of the Adeptus Mechanicus, they are in charge of “Jacking” the most ancient and revered ranged weapons. Youre thinking of the Techno-lustris run jointly by the Adeptus Mechanicus and the Dark Mechanicum.
The judicial input is on whether Trump qualifies to be included in that described group which is disqualified. The problem with the self-executing clause here is that of course the described group of people are barred but who decides who qualifies?
Not until proven guilty, legally speaking, surely?
The language specifically does not require any conviction. A conviction would make 14A S3 undeniably apply, but a lack of conviction doesn’t make it not apply.
You kinda just said that it can be denied that it applies without a conviction. I think it’s tenuous at best, but I’m not a lawyer. I just know that, typically, you can’t say someone did a thing if it hasn’t been legally proven.
If the amendment had required a conviction of some kind, that requirement would have been stated. It is not.
This is a really weird rule. So we are going to have 50 separate decisions each one, at least on paper, independent of each other?
Elections for president, senators, and representatives are run solely by the states. It’s why we have multiple different “kinds” of federal elections. The election process depends on what state you’re in, and how the state legislature has determined to organize that election. Most states - but not all - are “winner take all” for electoral college votes. Maine and Nebraska split those votes based on proportion of popular vote.
So, because states are the only place where federal elections are operated, each state would need to adjudicate who is eligible to be on the ballot for a given office. Coincidentally, this is exactly why Mark Meadows’ claim that he was performing the duties of his office as White House Chief of Staff when participating in the pressuring of Brad Raffensperger to change the outcome of the Georgia presidential election fails. Nobody in the federal government has any business being involved in elections operated by a state. Doing so is, by definition, not part of the duties of any federal position.
Yes, fifty separate decisions, in theory. However, the moment one state (especially one where Trump has any chance of winning the popular vote therein, so not California, for example) decides to disqualify Trump from being on the ballot for president, there will be a legal challenge to that action. And because the rule here is one enshrined in the US Constitution, the case would likely be very quickly passed up to or appealed to federal court, possibly SCOTUS.
But federal courts may decline to hear the case, since, as above, states decide how to run elections. And if a state has determined that someone is ineligible to be on the ballot, … nobody in the federal government has any business there.
New Mexico has already made moves to remove someone at state level from the ballot for being in the Capitol on Jan 6. That case didn’t go all the way through, the election happened and the guy lost, so it was moot. But they did get as far as positively defining Jan 6 as an “insurrection,” and seemed ready to follow through with disqualification.
In practice, only a handful of swing (or red, somehow) states would need to disqualify Trump to prevent him from being elected. If you fall short of 270 electoral college votes, you lose. You don’t have to disqualify all states, just enough to make 270 electoral votes a statistical impossibility.
That is what the 50 states are for. If not then why not just get rid of them and relieve the expense of your middle layer of government?
I just think it is a weird freaken rule I also am surprised it hasn’t been abused the hell out of especially given that nearly every president we have ever had was in government prior for years before office.
Don’t get me wrong I don’t think he should be able to run again I just didn’t know that a state official could just decide that. I thought it had this long long process.
It doesn’t say “convicted of…”.
I doubt they put every Confederate on trial. Still I imagine there must be some court ruling for this to be the case. IANAL but a state court may make this decision and bar him from running in their state.
You’re absolutely right, but we live in a time where just recently poor people could have their lives DESTROYED over a joint, while on the other hand, a president can 100% knowingly tell an enormous crowd who he knows wants violence to “go to the capitol and fight fight fight” and that’s somehow completely a grey area and our hands are just tied.
Somehow all the testimony that he was watching the coverage of it gleefully doesn’t matter. The fact that even ignoring everything else it ought to be a crime that he didn’t ask them to stop. Oh it’s all just our opinion that he committed treason don’t you see?
And his remedy is a two thirds vote qualifying him.
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.
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.
This is an easy one for anyone capable of critical thinking and knows “innocent until proven guilty”.
He hasn’t been convicted of anything, only accused.
14A S3 does not require a conviction.
Bullshit. Otherwise you could just accuse your political rivals of crimes to prevent them from running.
You need to go back to internet lawyer school.
Can you show me which part of the 14th amendment, section three, requires a conviction of any kind?
Disqualification from office is not a criminal punishment.
Edit: Protip: The full text of 14A S3 is posted at the very beginning of this thread.
Can you show me in any part of the constitution where it says any civil punishment or penalty requires a conviction? Can a right wing DA accuse Hillary of the same crimes and remove her eligibility to office?
Not without a conviction.
District attorneys are probably not the people at the state level who determine ballot eligibility. Secretary of State would be likely, there are other election officials who could enforce constitutional law in this context.
People who are under 35 years of age are also disqualified from holding the office of President of the United States. Nobody needs to be “convicted” of being under the age of 35. If someone under the age of 35 meets all other prerequisites to run for president, they should not be allowed on the ballot, because it says so in the Constitution. No court case is required, no conviction is required, no accusation of any crime is required.
The same applies to people “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.”
Excellent work ignoring my question and retorting with a question that doesn’t even make any sense. In case you happened to miss it:
Edit: Oh wait, I think I see what you’re asking now. Are you asserting that disqualification is a civil penalty? It’s not. It’s not a penalty. There is no “right” to aspiring to or holding office.