Aaron Day, who is attempting to run for U.S. Senate in New Hampshire as an independent, told a federal magistrate judge on Wednesday that state regulators overstepped their authority by denying him a spot on the ballot.
Day, a libertarian activist who ran for this same seat as an independent in 2016, filed a lawsuit against Secretary of State David Scanlan after his office blocked Day from filing his candidacy in June. When Day attempted to file his declaration to run for the seat, Scanlan rejected his application because he wasn’t a registered voter in Nashua, where Day recently moved to from Bedford. State law requires candidates for elected office to be registered voters where they live.
Day contends, though, that the U.S. Constitution lays out the three qualifications for serving in the Senate — that the candidate be at least 30 years of age, a U.S. citizen for at least 9 years, and a resident of the state at the time of the election — and that the state of New Hampshire can’t impose additional hurdles.
After Day was initially rejected from submitting his candidacy paperwork, he immediately notified officials in Nashua of his new residency, but Scanlan’s office again rejected his candidacy because the city’s local elections board didn’t meet to formally add his name to the rolls. In late June, the state’s Ballot Law Commission also rejected Day’s appeal, on a 4-1 vote.
“I believe I have followed not only the Constitution, but also the state’s own guidance on the matter,” Day told Magistrate Judge Andrea Johnston in court on Wednesday.
Lawyers for the New Hampshire Attorney General, who are representing Scanlan in the case, say the state maintains regulations, such as a requirement that candidates who appear on the ballot be registered to vote in the communities in which they live, to avoid gamesmanship in elections.
Assistant attorney general Peter McKenna said without the rule, candidates with multiple homes could potentially wait until the final moments of the candidate filing period to select which races they may want to run for. The process, he told the court, is meant to maintain “order rather than chaos in the democratic process,” and said Day could still attempt a write-in campaign even if his name isn’t on the ballot.
Day responded that a write-in campaign would not provide him true access to the ballot.
Day’s goal — whether he gets on the ballot or not — is not necessarily to win the senate seat. Instead, he’s openly campaigned on the premise of taking away votes from Republican John E. Sununu, who polls show is leading in the GOP primary. This isn’t his first attempt at spoiling an election for the GOP: in 2016, Day received nearly 18,000 votes, enough to help defeat Kelly Ayotte, who lost to then-Gov. Maggie Hassan by just over 1,000 votes. At the time, Day said he was motivated by what he saw as flaws in the party’s platform.
Lawyers for the state contend that they have the authority to control who appears on the ballot through regulations, such as the requirement that independent candidates such as Day obtain 3,000 signatures. Those procedural rules, they contend, do not conflict with the U.S. Constitution’s qualification requirements.
Day said the state “invented a condition,” though, when it failed to accept his declaration of candidacy. “Basically, they invented something that's not in the text,” he said after the hearing.
