By Thomas Caldwell, InDepthNH.org
CONCORD — The Attorney General’s Office was asked to look into the merits of disqualifying House candidates who supported a constitutional amendment seeking to have New Hampshire secede from the United States, but as the NH Ballot Law Commission prepares to take up the matter at 1 p.m. on Aug. 24, some of those facing disqualification say the answer is clear.
Karen Steele of Atkinson asked the Ballot Law Commission to disqualify 14 individuals from running for office, saying their actions violated Section 3 of the 14th Amendment to the United States Constitution, which prohibits those who have engaged in insurrection or rebellion, or given aid or comfort to the enemies of the United States, from holding elective positions.
Steele declined to comment Tuesday night before the Ballot Law Commission meeting Wednesday at the state archives where liberty activists are planning a rally before the meeting.
One of those on the list, Rep. Glenn Bailey, R-Milton, says, “For the 14th amendment to apply at all, those being disenfranchised would have to be first convicted of insurrection or rebellion. If that has happened, I somehow missed that trial.”
Michael Garrity, director of communications in the Office of the Attorney General, would not say whether the Department of Justice has determined the relevance of the 14th Amendment in the matter. The department’s response was: “This issue is before the Ballot Law Commission and they will be taking it up this week. It will be up to the Commission to decide how to handle this issue.”
Bradford Cook, chair of the Ballot Law Commission, said the opinions of counsel are attorney-client privileged, but the 1 p.m. meeting will be open to the public at the state archives.
Like other representatives who responded to requests for comment on their potential disqualification, Bailey said he does not plan to attend Wednesday’s BLC meeting, which he said “one might suppose … would be a rather short meeting.”
“I believe lawyers would say that those who are making this 14th amendment-based accusation lack a necessary ‘element’ or ‘predicate.’ Open and shut,” Bailey said, calling it an “attempted witch hunt.”
Rep. Michael Sylvia, R-Belmont, the lead sponsor of the failed bill, is a Free Stater and much has been made of the connection between the secession movement and the Free Staters, a group of “liberty-minded” people who have moved to New Hampshire to advance their views.
Chris Lopez, Free State Project Moving Director, said 45 state Representatives are Free Staters, but he said a better list of those sharing their values is kept by the New Hampshire Liberty Alliance, which rates all state Representatives according to its liberty index. Bailey and Sylvia carry A+ ratings on that website (https://www.nhliberty.org/wp-content/uploads/2022/07/Final-Liberty-Rating-2022.pdf.)
Sylvia responded to Steele’s disqualification request by saying that a constitutional amendment concurrent resolution (CACR) is a way of amending New Hampshire’s form of government. It first must be passed by a two-thirds vote of the legislature. If it passes that hurdle, it becomes a ballot question for the people of New Hampshire to decide, again requiring a two-thirds affirmative vote for passage. Even then, secession would be a long shot, requiring agreement by the rest of the nation.
CACR32 failed in the legislature on a 323-13 vote.
“Only the people of the state may change their government’s constitution,” Sylvia said. “To sanction a legislator for providing a non-violent avenue to peaceful reform would be chilling and invite other methods which would include insurrection and rebellion.”
In asking for their disqualification, Steele cited both those who sponsored the bill and those who did not vote to deem the bill “inexpedient to legislate.”
“Given the overlap,” she wrote in her email to the state, “there are a total of 14 individuals who should not be allowed to run for or hold office in New Hampshire.”
“I just find it very disturbing that any resident of New Hampshire, much less a state elected official, would go though the effort to even consider secession and to write out such a well-thought-out plan and a constitutional amendment, and to put that forward,” Steele said.