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Can the 14th Amendment Keep People Off the Ballot?

By Laura Temme, Esq. on May 19, 2022 10:32 AM

U.S. Rep. Marjorie Taylor Greene, R-Georgia, faced intense questioning last week relating to the January 6, 2021, riot at the U.S. Capitol, under a legal petition to have her disqualified from running for reelection.

Greene's critics point to Section 3 of the 14th Amendment, known as the disqualification clause, which states that a senator or representative in Congress cannot hold office if they "have engaged in insurrection or rebellion" against the United States government.

The disqualification clause hasn't gotten as much attention as other portions of the 14th Amendment — but does it have the potential to keep anyone off the ballot?

14th Amendment Refresh

The 14th Amendment covers a lot of things in just over 400 words. Most importantly, it ensured that everyone born in the U.S., including people formerly enslaved, had the same legal rights.

Passed in 1866, during the period after the Civil War known as the "Reconstruction," the 14th Amendment is best known for protecting against discrimination by the government. At the time, the focus was on racial segregation. But today, advocates use the 14th Amendment's "equal protection" clause to strike down laws that discriminate based on gender, sexual orientation, wealth, national origin, and more.

The 14th Amendment also prohibits states from depriving "any person of life, liberty, or property without due process of law."

Congress included the disqualification clause in the 14th Amendment to bar Confederate leaders from returning to political offices after the Civil War. In the official Congress's view, those individuals broke their oath to uphold the Constitution when they joined the Confederacy. However, by 1871, Congress and President Ulysses S. Grant faced political pressure to reconcile with former Confederates. And in 1872, Congress passed the Amnesty Act, which made the majority of them eligible for office again.

The equal protection and due process clauses formed the basis of numerous landmark Supreme Court decisions, including Brown v. Board of EducationRoe v. Wade, and Obergefell v. HodgesThe disqualification clause, on the other hand, flew under the radar for more than 150 years — until January 6th, 2021.

Were Greene's Actions 'Insurrection' or 'Rebellion'?

A group of Georgia voters, constitutional scholars, and liberal activists filed a challenge to Greene's candidacy for reelection in March 2022, citing the disqualification clause. An administrative law judge allowed her to remain on the ballot, but the plaintiffs have appealed to a Georgia court.

The same group attempted to block Rep. Madison Cawthorn from the GOP primary in North Carolina using the same argument, but the U.S. District Court judge assigned to the case concluded that the Amnesty Act essentially repealed the disqualification clause after the Civil War. An appeal in that case is ongoing, although it's likely a moot point since Cawthorn lost his primary race.

The same group is also challenging the eligibility of Republican Reps. Andy Biggs and Paul Gosar of Arizona. The Arizona Supreme Court ruled earlier this month that they can remain on the ballot.

There's not a lot of precedent for Greene's challengers to hang their hat on. The disqualification clause was last used in 1919 against a Wisconsin Congressman named Victor Berger. Berger was accused of spying for the enemy during World War I, and his opponents used the disqualification clause to exclude him from Congress after the war ended. But, his constituents in Milwaukee kept voting for him, and Congress eventually let him return.

So far, Georgia is the only jurisdiction where a judge has allowed a challenge like this to move forward. However, Greene's challengers face an uphill battle. If they can prove the Amnesty Act does not apply to current members of Congress, they'll still have to prove that Greene's actions sparked an insurrection.

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