The Volokh Conspiracy

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Why Efforts to Throw Rep Cawthorn Off the Ballot Are Likely Unconstitutional

Prof. Derek Muller explains why states cannot invoke Section 3 of the 14th Amendment to exclude those who sought to overturn the 2020 election results from the ballot.


Some folks have argued that Section 3 of the 14th Amendment bars those who supported the January 6 assault on the Capitol or other efforts to overturn the 2020 election results from running for public office. Democratic party lawyer Marc Elias, for instance, has suggested that Section 3 should bar some Republican members of Congress from running for reelection,  Some voters in North Carolina have even filed a complaint to keep Rep. Madison Cawthorn off the ballot.

North Carolina voters may have good reasons to not want Rep. Cawthorn as one of their representatives in Congress. (I sure wouldn't.) Yet the effort to force him off the ballot is ill-advised and, as Professor Derek Muller explains in the Wall Street Journal, likely unconstitutional.

From Prof. Muller's piece:

The U.S. Constitution doesn't allow states to invent qualifications for serving in Congress and exclude candidates from the ballot for failing to meet them. Yet that is precisely what the North Carolina State Board of Elections is trying to do to Rep. Madison Cawthorn. . . .

It would be unconstitutional if the [North Crolina state election] board attempted to take Mr. Cawthorn off the ballot. In 1995 the Supreme Court held in U.S. Term Limits Inc. v. Thornton that a term-limits amendment in Arkansas couldn't apply to congressional candidates. The qualifications enumerated in the Constitution, the court explained, are "fixed and exclusive." When a state tries to enforce an existing constitutional qualification, it may believe it is acting appropriately, but when it does so months ahead of Election Day, it often adds a qualification that the Constitution forbids. . . .

Even if Mr. Cawthorn were an "insurrectionist"—a matter of legal and factual debate—it wouldn't be a permanent bar to holding office. The Constitution provides that "Congress may by a vote of two-thirds of each House, remove such disability." We don't know whether Congress will decide before Election Day to bar from the House all who were involved in the events of Jan. 6 riot, but the Constitution is clear: The decision isn't North Carolina's to make.

States can't review a candidate's qualifications because the Constitution reserves that power to Congress itself. If voters elect a rascal who is constitutionally ineligible to serve, the people's representatives must decide whether or not to throw him out of the House.

For more from Prof. Muller on why lawsuits and other efforts to keep "insurrectionists" off the ballot are likely unconstitutional, see here.