Longshot Republican presidential candidate files lawsuit to disqualify Trump from N.H. primary

Castro’s argument is based on a much-discussed but still unproven legal theory that claims state and federal officials have authority under Section 3 of the 14th Amendment of the US Constitution to disqualify Trump for the ballot based on what’s already known about his efforts to subvert democracy.

The suit, which was filed by extreme-longshot Republican presidential candidate John Anthony Castro of Texas, argues that Trump is constitutionally ineligible to hold public office again because he “provided aid or comfort to the insurrectionists” who attacked the Capitol as Congress was certifying the 2020 presidential election results.

CONCORD, N.H. — A newly filed lawsuit asks a judge to deem former president Donald Trump ineligible for the 2024 ballot in New Hampshire on account of his involvement in the events that culminated in violence at the US Capitol on Jan. 6, 2021.

After urging by conservative talk-show host Charlie Kirk during his podcast on Monday, supporters of the former president inundated New Hampshire Secretary of State David Scanlan’s office with phone calls to pressure Scanlan to keep the GOP front-runner’s name on the ballot for New Hampshire’s first-in-the-nation presidential primary, which is less than five months away.

In a joint statement Tuesday, Scanlan and Attorney General John M. Formella said any assertion or implication that Scanlan had pursued a particular course of action with regard to Trump’s eligibility is “misinformation.” Scanlan’s office has asked for legal advice, and Formella’s office is “carefully reviewing the legal issues involved,” but neither has taken a position on this matter, they said.

They did not respond to questions about Castro’s newly filed lawsuit.

Castro, 39, an attorney and entrepreneur who ran for the US House and Senate in 2020 and 2022, didn’t qualify for the first GOP presidential debate, and he told the Globe he doesn’t intend to appear on the ballot for the presidential contest in all 50 states. He’s just targeting swing states and plans to file self-funded lawsuits in several more states by the end of the week, he said. He’s representing himself.

“My primary goal,” he said, “is to deny Trump a second term.”

Castro also filed a federal lawsuit in Florida in January seeking to have Trump disqualified. A judge dismissed that suit in June for lack of legal standing and ripeness, so Castro appealed to the 11th Circuit and has asked the US Supreme Court to rule that he has standing to sue.

Castro claims that he and Trump are competing for the same political position and, therefore, competing for votes and fundraising dollars. That’s the basis for his argument that he himself suffers harm if Trump is allowed to keep competing for the GOP’s 2024 nomination.

The gist of Castro’s argument is one that some legal scholars have suggested is plausible. Northwestern University law professor Steven G. Calabresi recently argued that another Republican presidential candidate, former Governor Chris Christie of New Jersey, is legally injured by Trump’s candidacy and should sue to boot Trump’s name from the ballot.

Calabresi told the Globe that he figures any candidate who qualifies for the ballot has standing to sue. Ultimately, that question of standing will need to be decided by the US Supreme Court, he said. “I hope that this guy will pursue it to that level,” he added.

Calabresi, who describes himself as a conservative Republican, worked in President Ronald Reagan’s White House and said he has voted for Republican presidential candidates every four years since, with the exception of 2020. Calabresi said he voted for Trump in 2016, then abstained in 2020 because Trump had suggested postponing the election.

”In an ideal world,” Calabresi said, “I think that Trump’s second impeachment should have proceeded and he should have been disqualified from holding office again in the future at that time.”

At this point, Calabresi said he sees valid constitutional arguments both to deem Trump ineligible for the ballot and to spare Trump from prosecution for his alleged crimes.

”My desire is that he not be on the ballot and that he not be criminally punished,” he said. “I don’t want to see the country go down that road.”

Others have argued this legal theory contradicts relevant precedent and represents nothing more than a political attack.

While some see the 14th Amendment as a tool to defend democratic norms, the former president’s supporters see this untested legal theory as an anti-democratic cudgel designed to override their political will. Trump faces four criminal indictments, including two related to his efforts to cling to power after his 2020 electoral defeat.

“The people who are pushing this political attack on President Trump are stretching the law beyond recognition much like the political prosecutors in New York, Georgia, and D.C.,” said Trump campaign spokesperson Steven Cheung. “There is no legal basis for this effort except in the minds of those who are pushing it.”

In his New Hampshire lawsuit, Castro has asked a judge to issue an injunction to block Scanlan from accepting or processing Trump’s declaration of candidacy and any other documentation the former president submits to appear on the state’s ballot.

Scanlan, a Republican, told the Globe last week that he was aware of the legal theory and the prospect of litigation. He said he was seeking legal advice, both from in-house counsel and Formella’s office, to ensure that any decision he makes is done with a clear understanding of the arguments at play.

Scanlan said the violence that unfolded Jan. 6 should never have happened, but he suggested that he’s not well-situated to determine whether those events trigger the 14th Amendment.

“I don’t know that I’m really qualified to say whether that was an ‘insurrection’ or not. I think that is for the courts to decide,” he said.

Castro isn’t the only person pushing for Scanlan to deem Trump ineligible in New Hampshire. From Aug. 1 to Aug. 24, more than two dozen people contacted Scanlan’s office to urge him to take action against Trump, according to communications released to the Globe in response to a public records request.

Bryant “Corky” Messner, who was the GOP’s 2020 nominee for US Senate, has also said he’s thinking about filing a lawsuit to block Trump from the New Hampshire ballot. Messner, who met with Scanlan on Friday to convey his concerns, said he would consider filing suit on the basis that he is a New Hampshire voter harmed by Trump’s candidacy.

Messner told the Globe on Tuesday that, as far as his own potential litigation is concerned, the dispute over Trump’s ballot eligibility in New Hampshire is not yet ripe for judicial review. He declined to comment on Castro’s lawsuit.

New Hampshire GOP Chairman Chris Ager said Monday that he’s confident Scanlan and Formella won’t block any otherwise qualified candidate from the state’s ballot.

“Let voters decide the nominee, not a weaponized federal justice system using tortured logic,” Ager said.

Both of the declared candidates in the GOP’s 2024 gubernatorial contest in New Hampshire have called for the state to allow the presidential primary to play out.

“We must leave it up to the voters to decide our elections at the ballot box,” said former US senator Kelly Ayotte, who appears to be a very early favorite for the Republican nomination.

Chuck Morse, a former New Hampshire Senate president who’s competing with Ayotte, launched a petition demanding that Trump and all candidates have ballot access in New Hampshire. Trump “absolutely belongs” on the first-in-the-nation primary ballot, he said.

Steven Porter can be reached at [email protected]. Follow him @reporterporter.