A 1868 amendment to U.S. Constitution is best known for protecting due process rights of previously enslaved Americans. It has been resurfaced in some congressional races this year.
A few voters and attorneys believe that a section of the 14th Amendment relating to insurrection could disqualify some U.S. House Members from seeking reelection due to events surrounding Jan. 6, 2021’s riot at Capitol.
Madison Cawthorn, North Carolina, and Marjorie Taylor Greene, Georgia are two of the first-term Republican firebrands. They are both strong supporters of Donald Trump and have promoted his unverified claims of voter fraud in the 2020 presidential elections.
This argument is largely unknown and has been unsuccessful in getting through the election agencies of at least three states. However, court cases and appeals could clarify the extent to which state officials have the ability to scrutinize candidates for federal office.
What DOES THE 14TH ADDENDMENT SAY?
The amendment consists of five sections. One of the most well-known statements is that no state can “deprive anyone of life, liberty, or property without due process law; nor deny any person within its jurisdiction equal protection of laws.”
Section 3 of the amendment states that no person can serve as a member of Congress “who has previously taken an oath…to support the Constitution of the United States.” This was to prevent representatives who fought for the Confederacy in the Civil War from returning home to Congress. However, the amendment allows Congress to make laws to remove these restrictions.
WHAT APPLIES TO LAWMAKERS TODAY?
In legal filings, voters from the congressional districts where Greene and Cawthorn are running for reelection in the fall claim that evidence has been presented that they assisted in the Jan. 6th 2021 insurrection to stop the certification of President Joe Biden’s Electoral College win. They want state officials to investigate Greene, Cawthorn, and disqualify them this year from being on the ballots.
According to Thursday’s challenge to Brad Raffensperger (Georgia Secretary of State), Greene either planned the riot or helped to plan the demonstration that was held before the attack. He knew it was “substantially probable to lead to the attack” and he voluntarily assisted the insurrection.
Greene posted a video on social media saying: “You cannot allow it to transfer power ‘peacefully,’ like Joe Biden would want and allow him become our president. He did not win this election.”
Several similar allegations were made to the North Carolina Board of Elections, by voters who are challenging Cawthorn. Cawthorn said that the “crowd has some fight” at the “Save America Rally” just days before the riot.
An insurgent Democrat candidate for Indiana Republican Rep. Jim Banks made similar allegations against Banks to the state elections commission.
HOW HAS THE REPRESENTATIVES REPONDED?
Greene and Cawthorn claimed they didn’t do anything illegal, such as participating in insurrections or encouraging violence political.
Cawthorn was the first representative to be challenged in January. She claimed that activists are targeting “America First patriots,” who backed Trump. Greene claimed she was targeted because of her “effectiveness and will not bow down to the DC machine.”
Cawthorn sued the State Board of Elections in federal Court, claiming that North Carolina’s process for challenging candidates violated his constitutional rights. Cawthorn’s lawyers claimed that Section 3 did not apply to him because of the 1872 congressional action.
Free Speech for People is a national campaign finance reform and election reform group that represents the voters in both of these challenges. According to the group, other congressional candidates could face additional challenges.
WHAT HAPPENED TO THE CHALLENGES
The Indiana state elections commission voted unanimously to reject Banks’ challenge last month. Republican chairman of the commission called the Capitol riot “a regrettable mark in history”, but stated that there was no evidence to prove Banks was guilty.
Cawthorn was not heard by the State Board of Elections because of the ruling of Richard Myers earlier this month.
Myers stated that the 1872 law that disqualified office-holding persons “from all persons” (except for those who served in two legislative sessions) “demonstrates that the disability described in Section 3 cannot apply to any current member of Congress.”
So far, the North Carolina Board of Elections have not appealed. Myers had previously refused to allow voters to challenge his participation in the litigation. However, the 4th U.S. Circuit Court of Appeals instructed Myers last week to reconsider their entry. Myers could be ruled as early as next week.
COULD VOTERS ULTIMATELY SAY THEIR VOTE?
Free Speech for People claims that the 1872 law applies only to former Confederacy members: Ron Fein, group legal director, stated this month that voters have the right to challenge Cawthorn’s eligibility.
Michael Gerhardt, a University of North Carolina law student, stated that he believes that the 1872 law can be read more broadly than Myers did. He also stated that the chances of candidate challenges being accepted under insurrection claims is “probably not good.”
Gerhardt stated that it was a new theory, and that there is no consensus about the procedure. This poses a problem.
He stated that it was unclear whether a judge should hear evidence from state officials, Congress or a judge.
If the challenges fail or are delayed, the voters will still have the right to decide if the subject of the challenges should be returned to Congress. Greene and Cawthorn will be running for the GOP primaries in May.
Cawthorn, who has seven GOP opponents, may face a more difficult path. Cawthorn has also been criticised for a video where he called Volodymyr Zelenskyy, the Ukrainian president, a “thug”, even though his country is resisting a Russian invasion.
