The Independent View: Only The Federal Government Can Bar Candidates From The Ballot

This Opinion is by: Josh Blackman, a Constitutional Law Professor at South Texas College of Law Houston, and S. B. Tillman, an Associate Professor at Maynooth University School of Law and Criminology.

The events of Jan. 6, 2021, are casting a long shadow over the Midterm Elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn (R-11th District) from running for re-election to his House Seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene (R-14th District).

These Voters have filed Complaints with State Elections Officials, arguing that Section 3 of the 14th Amendment Disqualifies Members of Congress who engage in Insurrection from appearing on the Congressional Ballot, and Challenges to other Elected Officials and Candidates have also begun.

But these Challenges face an intractable problem: Only the Federal Government can Disqualify Insurrectionists from Congressional Ballots. States cannot unilaterally create Procedures, unless Authorized by Federal Statute, to keep accused Insurrectionists off the Congressional Ballot.

If these Members of Congress engaged in Insurrection, then the U.S. House of Representatives may Exclude them from taking Office, or Federal Prosecutors may Charge them with the Federal Crime of Insurrection.

The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 Disqualified many former Confederates from holding certain Public Offices if they had taken an Oath to support the U.S. Constitution, but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the Federal Judiciary has had few occasions to interpret Section 3. As a result, the Courts are largely in Uncharted territory. Nevertheless, there is some important on-point Precedent.

An 1869 Case concerning Hugh W. Sheffey is instructive for the Jan. 6 Litigation and how Courts might see things today. Mr. Sheffey took an Oath to support the Constitution, but later served as a Member of the Confederate Virginia Legislature, thereby actively supporting the Confederacy.

After the war, he served as a State Court Judge. As Judge Sheffey, he presided over the Trial and Conviction of Caesar Griffin for Shooting with an intent to kill. Later, Mr. Griffin challenged his Conviction in Federal Court. He argued that Section 3 should have Disqualified Mr. Sheffey from serving as Judge. Griffin’s Case, as it is known, was heard on Appeal by the Federal circuit Court in Virginia. Salmon P. Chase, the Chief Justice of the U.S. and an Appointee of President Abraham Lincoln, presided over the Appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did Not Disqualify Judge Sheffey, despite the fact that he had taken an Oath to support the U.S. Constitution and that it was “admitted,” as the Case stated, that he later Committed a Section 3 Disqualifying Offense.

Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment, and that “Only” Congress can enact that Legislation. Chief Justice Chase added that the Exclusion of Disqualified Office holders “can only be provided for by Congress.” Congress must Create the Procedure that would determine if a Defendant Violated Section 3. Section 5 of the 14th Amendment emphasizes this Principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”

In short, Griffin’s Case teaches that in Legal terms, Section 3 is Not self-executing, that is, Congress must establish, or at least Authorize, the Process that affords accused Insurrectionists an Opportunity to Contest the Allegations brought against them.

There may be another way, based on an Existing Statute, to Disqualify a Candidate from Congressional Ballots: the Insurrection Act of 1862. This Legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.

The modern Insurrection Act is virtually unchanged from the Statute Lincoln signed in 1862. If the Justice Department Indicts and Succeeds in convicting Mr. Cawthorn, Ms. Greene, or others of Insurrection under that Act, then on that basis, State Elections Boards and State Courts may remove these Candidates from the Congressional Ballot.

If the Justice Department does Not secure a Conviction of a Section 3 Disqualifying Offense before the State Ballot is Printed, the Primary in North Carolina is scheduled for May 17th and the One in Georgia for May 24th, then, generally, State Boards of Election and even State Courts will be Powerless to Remove otherwise Eligible Congressional Candidates from the Ballot.

Congress has not Authorized the States to enforce Section 3 by striking Congressional Candidates from the Ballot. Thus, State Courts and Elections Boards lack Jurisdiction to exclude alleged Insurrectionists from the Congressional Ballot. In such circumstances, State Governments must let the People decide who will Represent them in Congress.