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Should former President Donald Trump run for the White House again, an obscure Reconstruction-era law could keep him off the ballot in six southern states, including North Carolina, Georgia and Florida, because of his incitement of the Jan. 6 insurrection.
The third section of the 14th Amendment prohibits people who swore to defend the Constitution, but who subsequently took part in an insurrection against the United States, from holding state or federal office. Other language in that post-Civil War amendment, though, makes many experts believe that only Congress can enforce the ban, which means Senate Republicans could block any such action.
But the 1868 law that readmitted the six states put the burden on them to keep those who have been involved in insurrections from seeking office — potentially making it considerably easier to keep Trump off their primary and general election ballots.
“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 encourage the Jan. 6, 2021, assault on the Capitol. “The law is still there. And it could be appealed to.”
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 all of them in 2020 except for Georgia, which he lost by 12,000 votes.
We fully intend to pursue this type of challenge if Mr. Trump chooses to run.Ron Fein, Free Speech For People
Ron Fein, whose Free Speech For People group is already challenging North Carolina Rep. Madison Cawthorn’s attempt to seek reelection because of his participation in the Jan. 6 pre-riot rally, said that the constitutional ban on insurrectionists running for office applies everywhere, and the 1868 law merely helps explain what Congress meant.
“Whether you’re in Maine or Mississippi or Alabama, the 14th Amendment applies,” he said. “Maybe there’s more clarity in these states.”
Fein likened the insurrection disqualification to existing exclusions in the Constitution, such as the way age and citizenship would disqualify a 12-year-old who lived in another country from running for federal office. “Does anyone seriously think that that person should be allowed on the ballot? I don’t think so,” he said.
Trump’s staff did not respond to HuffPost’s queries for this article.
The former president was impeached for inciting an insurrection by the House, but not enough Republicans in the Senate voted to convict him, arguing that they did not have the authority because Trump was no longer president. Had they done so, a simple majority vote could then have banned Trump from holding federal office for the rest of his life.
“It would have been great if Congress had already taken care of this,” Fein said, but added that he and his group plan to lodge 14th Amendment complaints wherever possible against those involved with the Jan. 6 attack, especially against Trump. “We fully intend to pursue this type of challenge if Mr. Trump chooses to run.”
Keeping Insurrectionists From Office
At the end of the Civil War, Congress was determined to keep those who had fought for the Confederacy or served in its government from holding office.
That sentiment was codified in the 14th Amendment, which in its third section bans those who had previously sworn an oath to uphold the U.S. Constitution and subsequently participated in an insurrection against the United States from ever holding state or federal office unless given a dispensation by Congress with a two-thirds vote. Section 5 of the amendment then states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
It is that sentence that makes a number of constitutional experts believe that only Congress can impose bans on specific insurrectionists from holding office — which in turn would mean that Trump would be safe from any such action, given that 10 Republican senators would have to go along with the 50 Democrats for such a measure to pass that chamber. By way of comparison, only seven GOP senators voted to convict Trump for insurrection following his impeachment, just weeks after Jan. 6, when his influence was likely at its nadir.
But before the 14th Amendment had been ratified, Congress passed a law in 1868 making enforcement of the insurrectionist ban in the proposed amendment a condition of six Southern states’ readmission to the Union. The remaining Confederate states were readmitted after the amendment had been ratified, and so the laws letting them back in did not contain that specific requirement.
Fein said that the 1868 law’s language does not so much create a different standard for office-holders in those six states as it does illustrate that lawmakers then — the same ones who passed the 14th Amendment — wanted all states to enforce its anti-insurrectionist restriction.
In fact, the existence of that 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. “This adds clarity and maybe helps dispel arguments,” he said.
Michael Luttig, a retired federal appellate judge and long an icon to conservatives, said the existence of the 1868 law would be persuasive to courts today regarding congressional intent when it comes to the question of whether states can take action on their own.
“The argument that the states can enforce Section 3 would be appealing — especially given the explicit statutory condition on readmission that the specified states would enforce Section 3,” Luttig said.
Robert Orr, a former North Carolina Supreme Court justice who is working with Fein’s group, said it never made sense that Congress would have wanted to make decisions regarding state officials all over the country.
“Congress is not going to be determining the qualification of a sheriff in Moore County, North Carolina,” he said. “It’s not Congress’s role to make that determination.”
The challenge to Cawthorn proceeded on the assumption that states have the ability to assess federal qualification requirements: that Cawthorn’s role in the Jan. 6 insurrection bars him from seeking that office just as a 15-year-old’s age or a foreigner’s citizenship would prevent them from seeking it. North Carolina, like some but not all states, permits residents to challenge candidate qualifications.
“It’s simply a question of following the state statute and determining whether Cawthorn is disqualified,” Orr said.
Already Impeached For Insurrection
Cawthorn, a first-term Republican who denies he encouraged an insurrection, is the first participant in Trump’s Jan. 6 rally to face a qualification challenge, but almost certainly will not be the last.
Fein said the filing in North Carolina was based on the primary election schedule there — it was to be held in March, but now has been pushed to May because of a redistricting lawsuit — but that other challenges are likely 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 scheme to hold onto power despite losing the election.
Alabama Rep. Mo Brooks, for example, asked members of the Jan. 6 rally crowd if they were ready to sacrifice their lives, as their ancestors had done: “Are you willing to do what it takes to fight for America?” he screamed. “The fight begins today.”
Whatever their level of responsibility might be for the mayhem and violence that happened shortly thereafter at the Capitol, though, necessarily pales in comparison to Trump’s culpability.
Trump began lying about the election results starting in the wee hours of Nov. 4. After his legal challenges ran out and the Electoral College voted 306-232 in his opponent Joe Biden’s favor on Dec. 14, Trump quickly turned to a wide-ranging scheme to overturn the election during Congress’s ceremonial session to certify it.
He began inviting his followers to come to Washington on the appointed day and then had his staff arrange a rally speech just before the appointed hour. There, with the White House as his backdrop, he told his crowd that the rules were different now and that if they did not “fight like hell” that day, they would lose their country.
After his own vice president, Mike Pence, announced publicly that he would not go along with the attempted coup, Trump attacked Pence in a Twitter post, accusing him of lacking “the courage” to do what was necessary.
Four of Trump’s own supporters died in the ensuing riot, and 140 police officers were wounded, some gravely. One officer died the next day, and four others took their own lives in the following weeks.
Trump was impeached in the House on a bipartisan vote — 10 Republicans joined all Democrats — exactly a week after the Capitol attack on the charge of “incitement of insurrection.”
Even Senate Republican Leader Mitch McConnell, who eventually voted against convicting Trump, claiming that the Senate could not convict a former president, called the assault a “failed insurrection” on Jan. 6 itself.
Fein, Orr and others expect that a 14th Amendment disqualification challenge based on Jan. 6 could ultimately go to the U.S. Supreme Court. “We know that this could be potentially complicated,” Fein said.
In the meantime, the challenge against Cawthorn could yield more firsthand testimony about the planning for and events of Jan. 6, 2021.
Because once the North Carolina State Board of Elections has determined that a challenge, on its face, has enough evidence to go forward, the burden then shifts to the candidate to prove qualification, which could involve having to testify under oath.
That ordeal could be Cawthorn’s to face 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,” said Orr. “The evidence against Trump is obviously overwhelmingly more than there is for Cawthorn.”
This story has been updated to clarify the views of Michael Luttig.
This article originally appeared on HuffPost and has been updated.