RALEIGH, N.C. — (AP) — An 1868 amendment to the U.S. Constitution best known for protecting the due process rights of formerly enslaved Americans has resurfaced in some congressional races this year.
Some lawyers and voters believe a rarely cited section of the 14th Amendment dealing with insurrection may disqualify a handful of U.S. House members from seeking re-election for the events surrounding the Jan. 6, 2021 riot on Capitol Hill.
Brandons first-term Republicans Madison Cawthorn from North Carolina and Marjorie Taylor Greene from Georgia are among the targets. Both are staunch supporters of former President Donald Trump who pushed his unsubstantiated allegations of voter fraud into the presidential election 2020.
It’s a largely untested argument that is making its way through election agencies in at least three states, with little success so far. But court cases and appeals could determine the extent to which state officials can review the minimum qualifications of applicants for federal office.
WHAT DOES THE 14TH AMENDMENT SAY?
The amendment has five articles. The best known declares that no State may “deprive any person of life, liberty or property, without due process; nor deny to any person within its jurisdiction the equal protection of the laws”.
Section 3 of the amendment also declares that no person shall serve in Congress “who, having been sworn, as a member of Congress … to uphold the Constitution of the United States, has engaged in an insurrection or a rebellion against the same.” This section was designed to prevent representatives who had fought for the Confederacy during the Civil War from returning to Congress.The amendment, however, allows Congress to pass laws that can remove these restrictions.
HOW MIGHT THIS APPLY TO LEGISLATIVE TODAY?
Voters in congressional districts where Cawthorn and Greene are seeking re-election this fall allege in legal papers that evidence shows they helped facilitate the Jan. 6, 2021 insurgency that tried to thwart certification of the victory of the President Joe Biden’s electoral college. Voters want state officials to investigate Greene and Cawthorn and block them from appearing on ballots this year, based on the language of the amendment.
Greene, according to a challenge filed Thursday with Georgia Secretary of State Brad Raffensperger, either helped plan the riot or helped plan the pre-arranged protest, knowing it was “essentially likely to lead to the attack, and otherwise voluntarily aided the insurrection”.
In a video posted to social media, Greene said, “You can’t allow him to just transfer power ‘peacefully’ like Joe Biden wants and allow him to become our president because he didn’t win this. election.”
Somewhat similar allegations were filed with the North Carolina Board of Elections by voters challenging Cawthorn. Cawthorn spoke at the “Save America Rally” before the riot, days after taking the oath, saying “the crowd is fighting back.”
A longtime Democratic candidate seeking to unseat Indiana Republican Representative Jim Banks has filed similar allegations against Banks with the state’s Election Commission.
HOW DID REPRESENTATIVES RESPOND?
Greene and Cawthorn said they had done nothing illegal, such as encouraging political violence or participating in an insurrection.
Cawthorn, who was the first representative to be challenged in January, said the activists were going after “America’s First patriots” who backed Trump. Greene said she was targeted because she is “efficient and won’t bow to the DC machine.”
Cawthorn sued the State Board of Elections in federal court, saying the North Carolina candidate challenge process violated his constitutional rights and should be struck down. His attorneys also said Section 3 did not apply to Cawthorn because of Congressional action in 1872.
Free Speech for People, a national election and campaign finance reform group, helps represent voters in both challenges. The group said more challenges could be filed against other members of Congress seeking re-election.
WHAT HAPPENED TO THE CHALLENGES?
Indiana State Election Commission voted unanimously last month to dismiss the challenge against Banks. The commission’s chairman, a Republican, called the Capitol riot an “regrettable mark in history,” but said there was no evidence that Banks was guilty of participating in an insurrection.
As for Cawthorn, U.S. District Judge Richard Myers ruled earlier this month that the National Board of Elections was unable to hear voter challenges to Section 3 claims.
Myers wrote that the 1872 Act which removed disqualifications from holding office “of all persons whatsoever” – except those who served in two specific legislative sessions among others – “demonstrates that the invalidity set forth in Article 3 shall not apply to any current member of Congress.”
The North Carolina Board of Elections has not appealed so far. Myers had previously pushed back on efforts by voters who filed challenges to join the litigation, but the 4th U.S. Circuit Court of Appeals told him last week to reconsider their entry. Myers’ decision could come as soon as next week.
CAN VOTERS FINALLY HAVE THEIR OPINION?
Free Speech for People argues that the 1872 law applied only to former members of the Confederacy: “The right of voters to challenge Cawthorn’s eligibility must be preserved,” said the group’s legal director, Ron Fein , this month.
Michael Gerhardt, a constitutional expert at the University of North Carolina School of Law, said he thought the 1872 law could be interpreted more broadly than Myers’ decision. But he also said the chances of candidate challenges continuing under insurgency claims are “probably not good”.
“It’s really a new theory and there’s no consensus on what the actual procedure should be, and that’s a problem,” Gerhardt said.
He said it’s unclear, for example, whether a statement that someone participated in an insurrection should come from a judge hearing evidence, from state officials, or from Congress.
If the challenges fail or are delayed, voters will still be able to decide whether the subjects of the challenges should come back to Congress. Greene and Cawthorn have GOP primaries in May.
Cawthorn may have the toughest road, with seven GOP opponents. He also came under fire for a video in which he called Ukrainian President Volodymyr Zelensky a “thug” even as his country resists a Russian invasion.
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