‘It has to be done’: can Reconstruction-era laws hold Trump and allies accountable?

In attempts to hold the former president Donald Trump and his allies accountable for election subversion, attorneys are reaching back to laws created in the wake of the civil war in the 1860s.

Related: Searching for the perfect republic: Eric Foner on the 14th amendment – and if it might stop Trump

Beyond Trump, too, lawsuits using these Reconstruction-era laws seek to enforce voting rights and prevent discrimination in modern-era elections.

The laws from this time period were designed, in part, to reintegrate the Confederate states back into the country and ensure that they did not yet again attempt to overthrow the government or pass laws to restrict newly freed Black citizens.

But the Reconstruction Congress created laws that were “flexible and responsive to modern-day threats”, making them applicable today and worth trying to enforce, said Jessica Marsden, an attorney with Protect Democracy, which has filed lawsuits using such laws.

In recent years, the use of laws originally designed to crack down on the Ku Klux Klan and its allies in government after the civil war has grown. This set of laws bans political intimidation and violence, including insurrection, and has been used in legal claims from Charlottesville, to the January 6 insurrection, to the federal government’s charges against Trump.

Section 3 of the 14th amendment, recently making headlines as various lawsuits attempt to use it to keep Trump off the 2024 ballot, makes it illegal for someone who was an officer of the US government to hold office again if they engaged in “insurrection or rebellion”.

One novel approach also seeks to use a law that dealt with readmitting Virginia into the union to protect the voting rights of people with felonies.

The resurgence of these laws in recent years has surprised some observers, but proponents say they are strong tools to fight back against anti-democratic movements happening today. And there aren’t more recent laws that deal directly with insurrection since the last major one happened during the civil war.

“We have been compelled to use tools that we didn’t use in the past or didn’t need to use because we didn’t have the kind of threat and the kind of character prepared to break norms as we do now with Mr Trump and his confederates,” said Sherrilyn Ifill, a civil rights attorney who is opening a center focused on the 14th amendment at Howard University School of Law.

Under Ifill’s leadership, in 2020 the NAACP’s Legal Defense Fund filed a lawsuit against Trump and the Republican National Committee using Ku Klux Klan Act statutes, alleging Trump’s campaign and the RNC were systematically trying to disfranchise Black voters by disrupting vote counting and trying to delay results. It’s “never easy to sue a president under the KKK Act”, Ifill said, “but it has to be done”.

“We are in a moment of democratic crisis,” Ifill said. “Trump and his agenda and Trumpism is a unique threat to the core of American democracy. And I think that has sent everyone into the space that we have to use all of the tools that are available to us.”

The Reconstruction Congress understood the threat of insurrection and the kinds of disfranchisement and violence that came from giving rights to Black men after the civil war because these activities had just happened or were still happening then, so they created a strong set of laws to prevent further violence and to hold accountable those who perpetuated it.

Since then, these threats haven’t been as direct as they are now, those filing lawsuits under these laws say, rendering the historic tools both useful and necessary.

“Congress in the 1860s and 70s gave us a toolkit that is surprisingly well-suited to this moment,” Marsden, of Protect Democracy, said.

The laws from that time period were written with an understanding that opponents of democracy would be “quite creative” in how they’d try to deter people from participating in the democratic process, leaving open what kinds of actions can be considered voter intimidation, Marsden said.

That has made the KKK Act, for instance, a valuable tool when addressing modern technology, such as a successful lawsuit against robocalls with threatening messages targeting Black voters about voting by mail. Another KKK Act case that recently settled involved a “Trump train” of vehicles that harassed a Biden bus in Texas in 2020, in which Protect Democracy argued that a town’s police force knew of this intimidation but didn’t work to stop it.

Protect Democracy is also arguing that the Virginia Readmission Act, which protected the rights of new Black citizens to vote, applies today to disfranchising people with felonies. In a lawsuit believed to be the first making this claim, the group says Virginia’s law that strips people with felonies of their right to vote is illegal because the Reconstruction-era readmission act says only certain felonies can be used to prevent voting.

Eric Foner, a historian who specializes in the civil war and the Reconstruction era, said it makes sense to use existing laws from that time period because they haven’t been repealed, despite the lack of use in the many decades since then, and reflect similar ideas to what’s happening today. The recent use of them shows just how strong the laws created by the Reconstruction Congress are, he said.

“It’s a political commentary on what is possible politically today,” Foner said. “And it’s an odd thing because it’s considered more possible to resurrect these laws than to pass new ones.”

With the resurgence of these laws come some challenges with making the case to judges, who may not have dealt directly with Reconstruction-era statutes beyond scholarly arguments. In the 14th amendment lawsuits, for instance, judges have questioned how to apply this section of law and interpret its provisions. And, given the high-profile and political nature of seeking to boot a former president from the ballot, judges have expressed wariness to wade into what some consider a political question, not a legal one.

Already, 14th amendment lawsuits in Colorado, Minnesota, Michigan and Florida have been tossed, though many are still ongoing and those bringing the lawsuits are likely to appeal, with the question expected to go before the US supreme court at some point.

In one smaller case, though, which didn’t involve someone as high-profile as Trump, a judge in New Mexico ruled that a county commissioner who had participated in the January 6 riots couldn’t hold office any more because of the 14th amendment.

Despite their discomfort with the politics of the issue, Ifill argues that judges need to show courage to enforce the amendment’s provisions.

“They may not want to do it any more than I wanted to sue a president under the KKK Act, but their job is to apply the law to the facts and issue a ruling that is consistent with what the law demands,” she said.