Below is my column on the Hill on a federal judge’s recent decision to allow a challenge to Rep. Marjorie Taylor Greene (R., Ga.) to appear on the ballot as an insurgent. . In my view, the underlying claim is without merit. The theory, backed by the likes of Harvard professor Lawrence Tribe, flies in the face of the plain language and history of the 14th Amendment’s disqualification clause.
Here is the column:
As the country prepares for midterm elections, the left seems to be rallying behind three Ds: democracy, disinformation and disqualification. This latest effort just got a huge boost from a Georgia judge who cleared a challenge to hit Rep. Marjorie Taylor Greene (R-Ga.) on the ballot as an insurgent. Nothing says “democracy” like preventing others from voting.
Many of us have criticized Greene for his inflammatory rhetoric and extreme views. No less dangerous, however, are the means used by some of Greene’s detractors to get rid of her. This is all part of a new movement to defend democracy by denying it. To paraphrase Vietnam’s strategy, democracy can only be saved by destroying it through the denial of speech or the right to vote.
Many Democratic politicians and pundits have long pushed for censorship to be essential to freedom. However, if such claims that freedom is tyranny sound Orwellian, they pale in comparison to the drive to disqualify dozens of candidates from appearing on ballots.
Judge Amy Totenberg ruled that critics could potentially remove Greene from the ballot because of her public comments before and after the Jan. 6, 2021, riot in Congress. Totenberg ruled that critics of Greene could challenge the Constitution’s 14th Amendment, known as the “disqualification clause.” It’s the same clause cited by some liberal members of Congress and legal experts as a way to bar dozens of Republicans, including former President Trump, from office for allegedly participating in an insurrection. against the United States or aiding and comforting its enemies.
That argument has been used more recently against Rep. Madison Cawthorn (RN.C.), who has also been opposed by House colleagues on both sides of the aisle. Cawthorn prevailed in federal court, which dismissed that effort; an appeal of that decision will be heard on May 3 by the United States Court of Appeals for the 4th Circuit in Richmond, Virginia.
There are similar efforts to block members like Arizona GOP Reps. Paul Gosar and Andy Biggs to appear on state ballots.
Totenberg greenlighted these constitutional claims despite the constitutional text and history showing the claims to be baseless.
Section 3 of the 14th Amendment was drafted after the 39th Congress convened in December 1865, after the Civil War ended. At the time, many members weren’t thrilled to see former Confederates like Alexander Stephens (D-Ga.), the Confederate vice president, appear in Congress to take back the very oath they had previously violated by waging war against the country.
Whether January 6 was a riot or an outright insurrection remains a matter of deep and largely partisan disagreement – but the disqualification clause was drafted with reference to a real civil war in which more than 750,000 people died in battle . The Confederacy was a separate government with its own army, currency, and foreign policy.
There’s another problem: Insofar as a person can be disqualified under the 14th Amendment, it requires action by Congress, not a local election committee. Despite an otherwise long and cautious opinion, Totenberg blithely set aside such details, including an 1869 ruling by Chief Justice Salmon P. Chase. The case in question challenged Hugh W. Sheffey’s right to hold an office in the Virginia state court, given his support for the Confederacy. Chase ruled that Section 3 did not disqualify Sheffey because “congressional legislation is required to give effect to ‘Section 3 of the 14th Amendment, and disqualification “can only be provided by Congress.”
Congress then passed the Amnesty Act of 1872, which struck down the disqualification clause except for “Senators and Representatives of the Thirty-Sixth and Thirty-Seventh Congresses”.
The Supreme Court has repeatedly ruled that states cannot impose their own qualifications on Congress because that would “erode the structure envisioned by the Framers.” Under such an approach, partisan state election commissions could simply conclude that a member is an insurgent and prevent voters from being able to make such choices for themselves.
Totenberg simply insists that banning an insurgent is tantamount to banning someone from running for president who is not a natural-born citizen or not of congressional age. However, age and citizenship are easily verifiable qualifications set forth in the Constitution for all applicants. There is no conclusion or further action required for such disqualifications. Totenberg suggests that a local council declaring a representative an insurgent is tantamount to confirming a candidate’s age or birthplace.
As with calls to censor misinformation, growing calls for disqualification pose a serious threat to our democracy. Countries like Iran routinely strike candidates off the ballot because of their underlying opinions or perceived disloyalty. Just as free speech allows good ideas to thwart bad ideas, free elections allow good candidates to win over bad candidates. The problem is that you have to accept to live with the judgment of your fellow citizens rather than controlling what they read or for whom they can vote.
To be fair to the court, Totenberg complained that “the parties devoted little time and few pages to the complicated questions inspired by this new situation”. As such, she did not feel comfortable granting Greene an injunction. However, this expression of reluctance at the end of the opinion belies the radical language used to make it happen.
With the other cases pending, this issue could now be headed for a showdown in the Supreme Court. In the meantime, Democrats will likely see in November whether the “three Ds” resonate as well with voters as they did with this judge.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.