Ballot Law Commission dismisses disqualification request

CONCORD — Sponsoring a piece of legislation does not rise to the level of rebellion, the Department of Justice advised when the Ballot Law Commission met to consider disqualifying candidates who as state representatives had supported a constitutional amendment on secession.

The commission met Aug. 24 to hear six cases where candidacies were in question, and dismissed the complaint against the 14 representatives who sponsored Constitutional Amendment Concurrent Resolution 32 or voted not to deem the bill inexpedient to legislate. CACR 32 would have placed the question of whether New Hampshire should secede from the United States on a ballot for NH voters to decide.

Karen Steele of Atkinson had petitioned the Ballot Law Commission to decide whether the 14th amendment to the United States Constitution required their disqualification, saying, “It is my assertion that [they] are no longer eligible to hold office in NH and thus are unqualified to run for office.”

Section 3 of the 14th Amendment states: “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.”

Rep. Michael Sylvia of Belmont was the lead sponsor of CACR32. Also signing on to the piece of legislation were Ray Howard of Alton (who has since moved out of state and resigned his position in the legislature), Peter Torosian of Atkinson, Matthew Santonastaso of Rindge, Dennis Green of Hampstead, Dustin Dodge of Raymond, and Glenn Bailey of Milton.

Seven other representatives were included in Steele’s disqualification request because they did not vote to kill the legislation. They were Glen Aldrich of Gilford, Paul Terry of Alton, Max Abramson of Seabrook, Alan Bershtein of Nottingham, Diane Kelley of Temple, Mark Warden of Manchester, and Josh Yokela of Fremont.

To pass, the secession bill would have had to meet a three-fifths majority in both the House and Senate. It then would go to the governor for approval, followed by the voters, where a two-third majority would be required. Even if passed by all those groups, secession would still have to be approved by the other states.

Instead, it failed in the initial House vote, 323-13.

Appearing before the commission on Wednesday, Steele made “a very good presentation,” according to Commission Chair Bradford Cook, focusing especially on the provisions against giving aid or comfort to the United States’ enemies.

Members of the commission, however, were sympathetic to the representatives.

Sylvia said ahead of the hearing that he would not be attending, but he commented, “To sanction a legislator for providing a non-violent avenue to peaceful reform would be chilling and invite other methods [of changing the government] which would include insurrection and rebellion.”

Bailey, also speaking before the hearing, said, “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.”

Aldrich said the constitutional amendment is being portrayed as a vote to secede when, in fact, it was only to put the question on the ballot, “which is a completely different thing.”

Santonastaso, wearing a secession T-shirt, appeared at Wednesday’s hearing to speak about the right to secede which he said was embedded in the New Hampshire Constitution. He apparently was referring to Article 10, which states, in part, “[W]henever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government.”

Cook said that interpretation is not consistent with the state Constitution, and that the Ballot Law Commission “probably [does not] have jurisdiction to decide federal constitutional questions, anyway, which has always been the position that we’ve taken in other circumstances, like whether a candidate for president is a natural-born citizen and stuff like that.”

The hearing lasted about 20 minutes, with the commission voting to dismiss Steele’s complaint.

“There was no evidence that any of these people have done anything other than vote on a bill in the legislature, so that’s not armed insurrection and it’s not violent overthrow of the government,” Cook said. “That really wasn’t the basis on which we did it, though. It was on jurisdiction.”

Originally, the commission was to meet on an issue having to do with a candidate who wanted to run as an Independent, but it ended up with six cases for the day.

One involved a man who wanted to run as an Independent Libertarian sheriff of Merrimack County, who had registered to vote but whose name had not been included on the checklist. The commission ruled that he could be on the ballot.

It denied that right to a woman seeking to run for a House seat as a Libertarian because she had failed to register with the checklist supervisors.

The commission sent a case to the Secretary of State and the Manchester city clerk when it was unclear whether a woman wishing to run for the House as an Independent had the required signatures on her filing petition.

It granted the experimental use of new voting machines on a limited basis this fall and next spring on a request from the Secretary of State’s Office.

The Ballot Law Commission is required to meet after filing periods and after elections. Cook said right now, it’s election season, “so things come up all the time.”