A county court in Santa Fe, New Mexico, on Sept. 6 became the initial in a lot more than 150 years to disqualify an individual from public office since they participated within an insurrection.
District Court Judge Francis Mathew discovered that Couy Griffin, a former county commissioner and founder of the group Cowboys for Trump, had participated in the violent U.S. Capitol attack on Jan. 6, 2021. Mathew invoked a nearly forgotten portion of the 14th Amendment, called Section 3, that may disqualify certain folks from state or federal office should they have “engaged in insurrection or rebellion” or given “aid or comfort” to the United States’ enemies.
The clause was initially adopted following the Civil War to help keep former Confederates from taking part in politics. The amendment says that disqualified folks are barred forever from either running for or being appointed to office. But Congress can vote by way of a two-thirds majority to waive this ban.
The clause fell into general disuse after 1872, when Congress gave amnesty to many former Confederates in a move toward reconciliation.
Some observers have argued that Section 3 disqualification ought to be dusted off to handle the Jan. 6 mob also to stop others who have threatened and committed violence or tried to disrupt federal elections from serving in government.
Mathew’s decision in addition has renewed talk among Democrats and good-governance groups about getting a solution to use Section 3 against former President Donald Trump to be able to disqualify him from ever holding office again.
We are scholars of comparative constitutional law who been employed by on democratic backsliding all over the world. In a forthcoming article, we explain that disqualification is potentially a good tool to safeguard democracy, nonetheless it may also be dangerous it rubs against the basic notion of democracy as something where anyone can run, and voters can decide.
Trump supporters clash with police and security forces as people make an effort to storm the united states Capitol on January 6, 2021 in Washington, DC. – Demonstrators breached security and entered the Capitol as Congress debated the 2020 presidential election Electoral Vote Certification. (Brent Stirton/Getty Images)
Recent attempts at disqualification
The disqualification of Griffin is one of the efforts voters and advocacy groups have lobbied for after Jan. 6. Many of these efforts have didn’t remove someone from office or prevent them from running. However the examples remain useful in focusing on how disqualification may be an alternative solution to more punitive criminal law options.
A suit filed by way of a band of voters to disqualify Rep. Marjorie Taylor Greene, R-Ga., for instance, foundered in July whenever a Georgia court affirmed a lesser court ruling that she hadn’t “engaged in insurrection.”
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Arizona and Wisconsin state judges also have rejected efforts to utilize Section 3 as a sword against those that supported the Jan. 6 insurrection. But none of the targets actually participated in the mob at the Capitol. Mere support of the rioters, or questioning the election outcome, is protected political speech beneath the First Amendment.
Griffin, though, engaged in a physical invasion of the Capitol.
Mathew’s careful opinion contains extensive factual findings and legal analysis. So that it tees up nicely the question of whether and how disqualification from democratic office is legitimate, justified or effective in defense of democracy.
That is especially important in the U.S., where there’s a insufficient recent historical experience with disqualification of individuals employed in politics.
When disqualification is practical
Other countries make a lot more extensive usage of political disqualification compared to the U.S. does, once we show in our forthcoming study.
Israel’s courts, for instance, have repeatedly disqualified candidates for insufficient “good character.” In Pakistan, the supreme court disqualified sitting Prime Minister Nawaz Sharif in 2017 after he was named in the Panama Papers due to corruption.
There are many costs and advantages to disqualifying someone from office, and additionally, there are open questions of how exactly to correctly interpret Section 3. We concentrate on the initial question of costs and benefits here.
Democracies require robust protections free of charge speech and association. But these freedoms could be abused by those wanting to undermine democracy itself.
For instance, Mathew documents Griffin’s persistent efforts to cast doubt on the legitimate upshot of the 2020 election also to instigate violence to derail President Joe Biden’s inauguration. The majority of Griffin’s actions, however, fell far lacking the threshold essential to justify criminal penalties for incitement the initial Amendment requires that the violence be imminent.
Griffin, nonetheless, participated in a concerted threat to American democracy. Disqualification is really a solution to address such threats minus the heavy hand of the criminal law.
Section 3, more generally, is another solution to address high-level misconduct in politics. Once we have explored in another study published in 2021, Congress has rarely impeached a U.S. president and an impeached president hasn’t actually been taken off office. Given partisan dynamics, it really is unclear if impeachment could actually remove and disqualify a sitting president.
This may leave Section 3 because the best alternative.
The risks of disqualification
Mathew’s opinion shows that Section 3’s “aid and comfort” language can go uncomfortably far. It might potentially chill legitimate political speech including criticism of the federal government, or support for a foreign power it doesn’t threaten democracy.
For instance, plaintiffs justified the necessity to disqualify Griffin by saying he committed “actions that normalized and incited violence” by “dehumanizing the opposition as ‘wicked’ and ‘vile.'”
Dehumanizing speech about political opponents is definitely often unhealthy for democratic practice, nonetheless it has become routine in politics.
Another challenge is that the written text for Section 3 isn’t entirely clear about how exactly disqualification really works. Does it apply automatically to anyone who partcipates in insurrection? Or does it require some type of either judicial or legislative process?
There is absolutely no settled answer.
Within an 1869 decision, Supreme Court Chief Justice Salmon Chase suggested that Section 3 didn’t apply automatically rather, disqualification occurred when Congress, or even a state legislature, authorized it.
Mathew rejected the positioning that only Congress will make the determination and instead held that Griffin could possibly be disqualified by order of a us state court.
The potential breadth and ambiguity of Section 3 creates a risk that the measure could possibly be repurposed, against its original aims, in a manner that hurts democracy.
U.S. President Donald Trump holds a copy of The Washington Post as he speaks in the East Room of the White House 1 day following the U.S. Senate acquitted on two articles of impeachment, on February 6, 2020 in Washington, DC. (Drew Angerer/Getty Images)
The larger picture
Disqualification, then, is really a superficial remedy to a profound problem. It may be effective against a low-level official like Griffin, however the bigger the mark, the less power everyday voters have.
Suppose some court was persuaded to disqualify Trump from the state’s 2024 presidential ballot. This type of move could possibly be thought to disenfranchise his supporters. This may play into Trump’s beliefs that the “game is rigged.”
Regardless of the correct legal answer, there exists a strong case for eliminating the uncertainty around how Section 3 works. We’ve argued for a carefully crafted federal statute that clearly explains when it applies and how it operates.
If disqualification would be to become a highly effective sword to guard democratic politics, it should never turn into a two-edged one which later weakens the democratic process in the U.S.
Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago; David Landau, Mason Ladd Professor and Associate Dean for International Programs, Florida State University, and Tom Ginsburg, Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, University of Chicago