Barring Congressmen From Reelection Due to Jan. 6 Is Unconstitutional

Regardless of what one thinks about Jan. 6, 2021 events, the efforts to stop certain members of Congress running for reelection is not meritorious.

In North Carolina, several voters challenged the candidacy of Republican Rep. Madison Cawthorn. They wanted him to be disqualified from the election ballot. A similar lawsuit has been filed in Wisconsin against Republican Sen. Ron Johnson, Rep. Tom Tiffany, and Rep. Scott Fitzgerald, claiming they “are no longer qualified” to seek reelection under the 14th Amendment because they participated in an “insurrection” on Jan. 6, including by supporting objections to the certification of certain electoral votes.

It is remarkable that no one protester has been arrested for criminal Trespass, assaulting officers or other actions at Capitol. Section 2383, which makes it a crime to engage in “any rebellion or insurrection against the authority of the United States.” Additionally, no member of Congress has been arrested, charged, or indicted for any actions taken on Jan. 6.

However, the challengers claim that these members are disqualified from holding office under Section 3(14th Amendment), which was ratified on 1868. Section 3 was aimed at the former Confederacy and said no one could be a member of Congress or hold any federal office who had previously held such a position if they “engaged in insurrection or rebellion.”

Section 3 contained a unique provision that was not found in any other Constitutional amendment. It gave Congress the power “by a vote of two-thirds of each House” to remove this disqualification. Congress did that in two amnesty laws: one in 1872, which kept a few disqualifications in place for certain members and the military, and one in 1898, which eliminated all remaining disqualifications. These acts were written in plain English and permanently removed the Section 3 insurrection disqualification from the 14th Amendment.

Article I of Constitution lists the three qualifications needed to be a senator and representative (age and citizenship). 1995 saw the U.S. Supreme Court in Term Limits, Inc. v. Thornton. Term Limits, Inc. v. Thornton, 1995, the U.S. Supreme Court ruled that no state could impose additional qualifications on any candidate for Congress. Candidates would be required to prove their innocence in relation to any claims they might have been involved in Jan. 6.

The Supreme Court also said that a state cannot dress up an additional qualification as a ballot access measure, since that is “an indirect attempt to accomplish what the Constitution prohibits (the state) from accomplishing directly.” Any attempts by officials or courts to refuse to allow a candidate’s name to be listed on the ballot because of his or her alleged participation in insurrection clearly fail this test.

Finally, the legality of attempts to disqualify candidates who objected at the certification of some electoral votes in the joint session Congress on Jan. 6, is not established. The process outlined in 1887’s Electoral Count Act was fully followed by the objections and subsequent votes.

The Electoral Count Act allows for a joint objection to be filed by a senator or representative. If such an objection is made, the joint session to count electoral votes is temporarily suspended while Congress votes and debates the objection. If the objection is defeated, the counting can resume, as was the case on January 6, 2021.

The attempt to bar members of Congress from being included on ballots should fail. It was based on claims that they either participated in an insurrection in Jan. 6 or objected at electoral votes. Congress permanently repealed the 14th Amendment’s insurrection disqualification. The amnesty acts that remain in force today also eliminated the objections to electoral votes.

These threats and attempts are an attempt to gain political advantages through unconstitutional acts. These efforts and threats are a waste time and resource and should be dismissed.

This article first appeared on via Tribune News Service.

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