Should former President Donald Trump run for the White House again, an obscure Reconstruction-era law could bar him from voting in six southern states, including North Carolina, Georgia and Florida, because of his incitement to the January 6 insurrection.
The Third Section of the 14th Amendment prohibits people who have sworn to uphold the Constitution, but later participated in an insurrection against the United States, from holding state or federal office. However, other language in this post-Civil War amendment leads many experts to believe that only Congress can enforce the ban, meaning Senate Republicans could block such action.
But the 1868 law that readmitted the six states placed the onus on them of barring those involved in insurgencies from running for office, which could make it considerably easier to prevent Trump from voting in the primary. and general.
“It’s still on the books,” said Gerard Magliocca, a law professor at Indiana University who studies the Reconstruction period. He added that the language could help those seeking to disqualify Trump and other candidates who appeared to be encouraging the Jan. 6, 2021, assault on the Capitol. “The law is still there. And it could be appealed.
The six states affected by the 1868 law – North Carolina, South Carolina, Georgia, Alabama, Louisiana and Florida – together have 88 electoral votes, or 33% of the total needed to win the presidency. Trump won them all in 2020 except Georgia, which he lost by 12,000 votes.
“We fully intend to pursue this type of challenge should Mr. Trump choose to run.”
– Ron Fein, Freedom of Speech for People
Ron Fein, whose group Free Speech For People is already challenging North Carolina Rep. Madison Cawthorn’s bid for re-election over his participation in the Jan. 6 pre-riot rally, said the constitutional ban on insurgents from running for office applies everywhere, and the 1868 law just helps explain what Congress meant.
“Whether you’re in Maine, Mississippi or Alabama, the 14th Amendment applies,” he said. “Maybe there is more clarity in these states.”
Fein compared the insurgency disqualification to existing exclusions in the Constitution, such as how age and citizenship would disqualify a 12-year-old child who lived in another country from running for federal office. “Does anyone seriously think this person should be allowed to vote? I don’t think so,” he said.
Trump staff did not respond to questions from HuffPost for this story.
The former president was impeached for inciting insurgency by the House, but not enough Republicans in the Senate voted to convict him, arguing they lacked power because Trump was no longer president. Had they done so, a simple majority vote could then have barred Trump from holding federal office for the rest of his life.
“It would have been great if Congress had already dealt with this,” Fein said, but added that he and his group plan to file as many 14th Amendment complaints as possible against those involved in the attack. of January 6, especially against Trump. “We fully intend to pursue this type of challenge should Mr. Trump choose to run.”
Keep the insurgents out of office
When the Civil War ended, Congress was determined to keep those who had fought for the Confederacy or served in its government from holding office.
This sentiment was codified in the 14th Amendment, which in its third section prohibits those who have sworn an oath to uphold the Constitution of the United States and then participated in an insurrection against the United States from holding office. state or federal unless excused by Congress. with a two-thirds vote. Section 5 of the amendment then states: “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
It is this phrase that leads a number of constitutional experts to believe that only Congress can ban specific insurgents from office – which in turn would mean that Trump would be immune from such action. , given that 10 Republican senators would have to follow along with the 50 Democrats for such a measure to pass in this chamber. By comparison, only seven GOP senators voted to convict Trump of insurrection after his impeachment, just weeks after Jan. 6, when his influence was likely at an all-time low.
But before the 14th Amendment was ratified, Congress passed an act in 1868 making enforcement of the ban on insurgents in the proposed amendment a condition of the readmission of six Southern states to the Union. The remaining Confederate states were readmitted after the amendment was ratified, and so the laws letting them back did not contain this specific requirement.
Fein said the language of the 1868 law not so much creates a different standard for office holders in those six states as it exemplifies that lawmakers at the time — the same ones who passed the 14th Amendment — wanted all states to enforce its counter-insurgency restriction. .
In fact, the existence of this law makes it easier to make an insurrection-based disqualification argument against candidates in the remaining 44 states and the District of Columbia, Fein said. “It adds clarity and maybe helps dispel arguments,” he said.
Michael Luttig, a retired federal appellate judge and longtime conservative icon, originally believed the 14th Amendment was not “self-executing” and required congressional action, but said the existence of the 1868 Act may well convince the courts today regarding the intent of Congress. .
“The argument that states can apply Section 3 would be appealing — especially given the explicit legal requirement for readmission that specified states would apply Section 3,” Luttig said.
Robert Orr, a former North Carolina Supreme Court justice who works with Fein’s group, said it never made sense that Congress wanted to make decisions about state officials across the country. country.
“Congress will not determine the qualification of a sheriff in Moore County, North Carolina,” he said. “It’s not the role of Congress to make that decision.”
Cawthorn’s challenge was based on the assumption that states had the ability to assess federal qualification requirements: that Cawthorn’s role in the January 6 insurgency precluded him from seeking the position, as did Cawthorn’s age. 15 years or citizenship of a foreigner would prevent them. to look for it. North Carolina, like some but not all states, allows residents to challenge applicants’ qualifications.
“It’s just a matter of following state law and determining if Cawthorn is disqualified,” Orr said.
Already indicted for insurrection
Cawthorn, a first-term Republican who denies encouraging an insurrection, is the first attendee at Trump’s Jan. 6 rally to face a qualifying challenge, but certainly won’t be the last.
Fein said the filing in North Carolina was based on the timing of the primary election there – it was supposed to be held in March but has now been pushed back to May due to a redistricting lawsuit – but that others challenges are probably elsewhere.
“We fully intend for this to be the first of several,” he said.
He declined to provide names, but a number of GOP lawmakers also spoke at the Jan. 6 rally and worked to push Trump’s plan to retain power despite losing the election.
Alabama Rep. Mo Brooks, for example, asked crowd members at the Jan. 6 rally if they were willing to sacrifice their lives, as their ancestors had done: “Are you willing to do what it takes to fight for America? He cried. “The fight starts today.”
Whatever their level of responsibility for the chaos and violence that unfolded shortly thereafter on Capitol Hill has nothing to do with Trump’s culpability.
Trump began lying about the election results beginning in the early hours of November 4. After his legal challenges fizzled out and the Electoral College voted 306-232 in favor of his opponent Joe Biden on Dec. 14, Trump quickly turned to a wide-ranging ploy to nullify the election during the session. solemn vote of Congress to certify it.
He began inviting his supporters to come to Washington on the appointed day, then instructed his staff to arrange a rally speech just before the appointed time. There, with the White House as a backdrop, he told his crowd that the rules were different now and if they didn’t “fight like hell” that day, they would lose their country.
After his own Vice President, Mike Pence, publicly announced that he would not go along with the coup attempt, Trump attacked Pence in a Twitter post, accusing him of lacking “the courage” to do so. what was needed.
Four of Trump’s supporters died in the ensuing riot and 140 police officers were injured, some seriously. One officer died the following day and four others committed suicide in the following weeks.
Trump was impeached in the House in a bipartisan vote – 10 Republicans joined all Democrats – exactly one week after the Capitol was attacked for “inciting insurrection”.
Even Senate Republican Leader Mitch McConnell, who ultimately voted against convicting Trump, saying the Senate could not convict a former president, called the assault a “failed insurrection” on Jan. 6 itself.
Fein, Orr and others expect a Jan. 6-based 14th Amendment disqualification challenge may eventually go to the U.S. Supreme Court. “We know it could be potentially complicated,” Fein said.
In the meantime, the challenge against Cawthorn may provide more first-hand accounts of the planning and events of January 6, 2021.
Because once the North Carolina State Board of Elections determines that a challenge, on its face, contains enough evidence to move forward, the onus then shifts to the candidate to prove their qualification. , which could involve having to testify under oath.
That test could be Cawthorn’s in the coming weeks – and then Trump’s, should he decide to run for president in 2024.
“Was there an insurrection against the constitutional order? Yes,” Orr said. “The evidence against Trump is obviously more overwhelming than there is for Cawthorn.”