Far-right lawmakers face challenges to staying on the 2022 ballot – Grid News

Introducing Grid Health, our new weekly health and policy newsletter

Far-right lawmakers face challenges to staying on the 2022 ballot

At least four Republican members of Congress are facing legal challenges to their reelection bids, based on their purported backing of the Jan. 6, 2021, insurrection.

The challenges don’t stem from a congressional inquiry, nor are they results of Justice Department investigations. They are being lodged by constituents of the lawmakers with the help of a Massachusetts-based legal advocacy group and a constitutional provision that hasn’t been used in over a century.

Republican Reps. Marjorie Taylor Greene (Ga.), Madison Cawthorn (N.C.), Andy Biggs (Ariz.) and Paul Gosar (Ariz.) are facing legal challenges to their ability to run for Congress. If they lose, they will be unable to compete for or serve in the 118th Congress that begins in 2023.

The quartet represents a minority of members tied to the insurrection and the broader “Stop the Steal” movement. Other members of Congress could face similar suits after the Jan. 6 committee releases its findings later this year, experts told Grid.

ADVERTISEMENT

On Monday, the House Jan. 6 committee requested information from Biggs along with Reps. Mo Brooks of Alabama and Ronny Jackson of Texas. Previously, the committee sought information from Rep. Scott Perry (R-Pa.), Rep. Jim Jordan (R-Ohio) and House Minority Leader Kevin McCarthy (R-Calif.). One witness told the panel she recalled at least 11 members of Congress had discussed overturning the election with Trump White House officials.

None of the lawmakers mentioned in this article replied to questions for this article. Jackson’s office shared a statement by the lawmaker declining to cooperate with the committee’s “witch hunt.”

“Engaged in insurrection”

The cases against Greene and her colleagues are built on Section 3 of the 14th Amendment, which prohibits the election to state or federal office of anyone who has “engaged in insurrection or rebellion.”

Greene is accused of encouraging violence in comments leading up to Jan. 6. The night before, she said the day would be “our 1776 moment.” Cawthorn spoke at the “Stop the Steal” rally that preceded the insurrection. “My friends, the Democrats with all the fraud they have done in this election, the Republicans hiding and not fighting — they are trying to silence your voice,” he told the crowd. Biggs and Gosar had previously been identified as planners for the day’s disruptive activities. All have embraced the false narrative that Donald Trump was the legitimate winner of the 2020 presidential election.

The provision has rarely been used since it was passed as part of the Reconstruction Amendments following the Civil War. Its last target was a Wisconsin Democratic socialist candidate for Congress, who had been indicted for allegedly aiding Germany in World War I.

ADVERTISEMENT

“It is a requirement for running for office or holding federal office that one having taken an oath to uphold the Constitution not engage in insurrection against it,” said Harvard University law professor Laurence Tribe.

Last month, Greene took the stand in a Georgia courtroom to testify about her alleged role fomenting support for the violent insurrection at the Capitol on Jan. 6. For the most part, Greene denied involvement or said she could not remember her actions, but she made history nonetheless: It was the first time a lawmaker had been asked, publicly and under oath, to account for their involvement in the Jan. 6 insurrection.

In the Greene case, a Georgia administrative law judge presided over the hearing. He is expected to issue a report that will serve as the basis for Georgia’s Secretary of State Brad Raffensperger to decide whether Greene can appear as a candidate on the state’s Republican primary ballot May 24. It’s not always that way, though. States determine for themselves how challenges to candidacies are heard. In Georgia, for example, an administrative judge would hear the case, while in North Carolina or Indiana, state election boards address such challenges.

The lawsuit against Greene was brought by residents of her district, along with the nonprofit advocacy group, Free Speech for People. As evidence against Greene, they produced a video she posted on Jan. 6 in which she said: “You can’t allow it to just transfer power ‘peacefully’ like Joe Biden wants and allow him to become our president because he did not win this election.”

Greene testified that the video was taken out of context. “My words never ever mean anything for violence,” she testified.

ADVERTISEMENT

In March, a federal judge intervened to halt a similar claim against Cawthorn that was pending before the North Carolina State Board of Elections. Cawthorn’s lawyers argued that Section 3 had been effectively nullified by the Amnesty Act of 1872. Free Speech for People has appealed the matter to the U.S. 4th Circuit Court of Appeals in Richmond, Va., which heard oral arguments Tuesday.

The suits aren’t easy layups. The same group that spearheaded the legal efforts against Greene and Cawthorn also filed Section 3 suits seeking to remove Gosar and Biggs from Arizona’s ballot, along with state Sen. Mark Finchem (R), who is running for secretary of state. An Arizona judge last month dismissed the cases on the grounds that voters do not have standing to bring cases under the 14th Amendment. Free Speech for People has said it plans to appeal the ruling to a state appeals court.

In February, Indiana’s election commission rejected an effort to challenge the candidacy of incumbent Rep. Jim Banks (R-Ind.) that was mounted by his Democratic opponent.

A problem for Trump in 2024?

The cases likely have import for Trump if he aspires to return to the White House, experts told Grid.

Gerard Magliocca is a professor at the Indiana University School of Law and an expert on Section 3. He testified as an expert witness at Greene’s hearing.


“A precedent seems to have been established,” Magliocca told Grid, “that if there is a challenge under Section 3 in Georgia, you have to submit yourself to questioning under oath.”

Magliocca said if Trump announces his candidacy in the 2024 presidential race, it would likely trigger state-by-state challenges based on Section 3, and that the matter would ultimately be decided in the Supreme Court.

Tribe, of Harvard Law School, concurred. If Trump runs in 2024, Section 3 challenges may be filed at the state level, but they “would be appealed all the way up to the Supreme Court.”

Magliocca said he believed the events of Jan. 6, 2021, fall squarely within the bounds of what the authors of the amendment were likely trying to prevent.

“Obviously, they weren’t primarily thinking about what insurrection of the future might look like,” he said. “They were more concerned about the one they just had. But, if you look at the term, the way it was understood, and the sort of precedents that were there at the time, what happened at the Capitol is well within what they would have understood to be an insurrection — and indeed, you could argue, more serious than some of the prior things that had been called insurrection.”

Thanks to Lillian Barkley for copy editing this article.

  • Steve Reilly
    Steve Reilly

    Investigative Reporter

    Steve Reilly is an investigative reporter for Grid focusing on threats to democracy.