The Volokh Conspiracy
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Several voters in North Carolina filed a candidacy challenge against Rep. Madison Cawthorn before the State Board of Elections. The challengers allege that Cawthorn is disqualified from running for re-election pursuant to Section 3 of the 14th Amendment, based on his conduct on January 6, 2021. (To be precise, if Cawthorn is in fact disqualified pursuant to Section 3, the House could have already expelled him).
Section 3 provides, in part:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
Seth Barrett Tillman and I wrote an article about two phrases in Section 3: "officer of the United States" and "office . . . under the United States." The challenge against Cawthorn, however, does not turn on the meaning of either phrase.
The jurisdictional element of Section 3 expressly applies to a person who took an oath "as a member of Congress." On January 3, 2021 Cawthorn took an oath as a Representative. And the disqualification element of Section 3 expressly applies to a "Senator or Representative in Congress." Cawthorn currently serves as a Representative, and has announced his candidacy for re-election. Thus, if this issue is ever litigated, the courts would have no occasion to decide the meaning of the phrases "officer of the United States" and "office . . . under the United States" in Section 3.
This challenge has many other problems, which Derek Muller describes at the Election Law Blog. States generally have the authority to exclude from the ballot those candidates for state office who do not meet state law qualifications. But Derek doubts that states can exclude from the ballot those congressional candidates who may not meet the federal qualifications for office. Derek writes:
While states have the power over the "manner" of congressional elections, that power does not extend to adding qualifications for office, or the related power of adjudicating qualifications. I make this argument in Weaponizing the Ballot. A state can develop rules over the mechanics of appearing on the ballot, including threshold levels of support, but cannot extend to substantive evaluation of candidates.
Ultimately, the people can decide whether to vote for a candidate, and Congress can judge whether that candidate is qualified. Derek writes that State election boards cannot deny people the right to vote for the congressional candidate of their choice, based on the board's interpretation of federal law. Derek observes that the House has taken no action to expel Cawthorn or others. If Congress hasn't seen fit to exclude its own members, would it be proper for the courts to do so?
In my view, this litigation is just a warm-up for the inevitable Section 3 litigation against Trump. There is a hope that some court, somewhere, finds that Section 3 is justiciable, and concludes that there was an insurrection. Those legal and factual predicates will grease the skids to keep Trump off the ballot. This issue is not going away. Marc Elias already sent out the marching orders:
My prediction for 2022: Before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress.
We may even see litigation. pic.twitter.com/pF7P2fw0kn
— Marc E. Elias (@marceelias) December 21, 2021
Recently, the Congressional Research Service published an updated report on Section 3, which cited a blog post Seth and I wrote. Stay tuned for more.