Laws from the Reconstruction era could keep Trump out of the presidential election in 6 southern states

Should former President Donald Trump run for the White House again, an obscure law from the Reconstruction era could keep him off the ballot in six southern states, including North Carolina, Georgia and Florida, because of his incitement to the January 6 uprising.

The third paragraph of the 14th Amendment prohibits persons who swore to defend the Constitution but who subsequently took part in a revolt against the United States from holding state or federal offices. However, another language in this post-Civil War change leads many experts to believe that only Congress can enforce the ban, meaning Senate Republicans can block any such action.

But the 1868 law, which reoccupied the six states, placed the burden on them to keep those involved in the uprising from seeking office – potentially making it significantly easier to keep Trump away from their primary and general election.

“It’s still in the books,” said Gerard Magliocca, a law professor at Indiana University who is studying the rebuilding period. He added that the language could help those seeking to disqualify Trump and other candidates who appeared to be encouraging the attack on the Capitol on January 6, 2021. “The law is still there. And you could appeal to that.”

The six states affected by the 1868 law – North Carolina, South Carolina, Georgia, Alabama, Louisiana and Florida – have a total of 88 electoral votes, or 33% of the total number needed to win the presidency. Trump won them all in 2020 except Georgia, which he lost by 12,000 votes.

“We fully intend to pursue this type of challenge if Mr Trump chooses to run.”

– Ron Fein, Freedom of Expression for Humans

Ron Fein, whose Free Speech For People group is already challenging North Carolina Representative Madison Cawthorn’s attempt to seek re-election because of his participation in the pre-January 6 riots, said the constitutional ban on rebels who can run , applies everywhere, and the 1868 Act merely helps to explain what Congress meant.

“Whether you are in Maine or Mississippi or Alabama, the 14th Amendment applies,” he said. “Perhaps there is more clarity in these states.”

Fein compared the disqualification of the insurgency to existing exclusions in the constitution, such as the way age and citizenship would disqualify a 12-year-old living in another country from running for federal office. ‘Does anyone seriously think that person should be allowed to vote? I do not think so, “he said.

Trump staff did not respond to HuffPost’s requests for this article.

The former president was sued for inciting an uprising in the House of Representatives, but not enough Republicans in the Senate voted to convict him, claiming they did not have the authority because Trump was no longer president. Had they done so, a simple majority could have banned Trump from holding federal office for the rest of his life.

“It would have been great if Congress had already taken care of this,” Fein said, adding that he and his group plan to lodge complaints from the 14th Amendment, where possible, against those involved in attacked on January 6, especially against Trump. “We fully intend to pursue this type of challenge if Mr Trump chooses to run.”

Trump supporters storm the US capital and stop a joint session of the 117th Congress on January 6, 2021.
Trump supporters storm the US capital and stop a joint session of the 117th Congress on January 6, 2021.

Kent Nishimura / Los Angeles Times via Getty Images)

Keeps rebels out of the office

By the end of the Civil War, Congress was determined to keep those who had fought for the Confederacy or served in its government from holding office.

This position was codified in the 14th Amendment, which in its third paragraph prohibits those who had previously sworn an oath to uphold the US Constitution and subsequently participated in a revolt against the United States, from ever holding state or federal offices, unless they received dispensation from Congress. by two-thirds votes. Paragraph 5 of the amendment then states: “Congress shall have the power to enforce the provisions of this article by appropriate legislation.”

It is the phrase that leads a number of constitutional experts to believe that only Congress can impose a ban on certain rebels from holding office – which in turn would mean that Trump would be safe from any such action, as 10 Republican senators would have to to agree with the 50 Democrats that such a measure should pass that chamber. By comparison, only seven GOP senators voted to convict Trump of rebellion after his trial, just weeks after Jan. 6, when his influence was likely on his nadir.

But before the 14th Amendment was ratified, Congress in 1868 passed a law that made the enforcement of the rebellion ban in the proposed amendment a condition of six southern states’ readmission of the Union. The remaining Confederate states were resumed after the amendment was ratified, and therefore the laws that re-admitted them did not contain the specific requirement.

Fein said that the language of the law of 1868 does not so much create a different standard for officials in these six states, as it illustrates that legislators at the time – the same ones who passed the 14th Amendment – wanted all states to enforce their anti-rebellion restriction . .

In fact, the existence of that law makes it easier to make a rebel-based disqualification argument against candidates in the remaining 44 states and the District of Columbia, Fein said. “This adds clarity and may help clear up arguments,” he said.

Michael Luttig, a retired federal appeals judge and long an icon of conservatives, initially thought the 14th Amendment was not “self-performing” and needed congressional action, but said the existence of the 1868 law could very well be convincing to the courts in day with respect to the intentions of Congress. .

“The argument that states can enforce section 3 would be appealing – especially given the explicit statutory condition of readmission that the specified states would enforce section 3,” Luttig said.

Robert Orr, a former North Carolina Supreme Court justice who works with Fein’s group, said it never made sense that Congress would have wanted to make decisions regarding state officials across the country.

“Congress is not going to determine the qualification of a sheriff in Moore County, North Carolina,” he said. “It is not the role of Congress to make that decision.”

The challenge to Cawthorn was based on the assumption that states have the ability to assess federal qualification requirements: that Cawthorn’s role in the January 6 uprising prevents him from seeking the job, just as a 15-year-old or a foreigner’s citizen would prevent them in to seek that office. from seeking it. North Carolina, like some but not all states, allows residents to challenge the candidate’s qualifications.

“It’s simply a matter of following the state’s statute and deciding whether Cawthorn is disqualified,” Orr said.

Rep.  Madison Cawthorn (RN.C.) speaks at a pro-Trump meeting in the White House on January 6, 2021 ahead of the attack on the US capital.
Rep. Madison Cawthorn (RN.C.) speaks at a pro-Trump meeting in the White House on January 6, 2021 ahead of the attack on the US capital.

Bill Clark via Getty Images

Already Supreme Court for rebellion

Cawthorn, a first-time Republican who denies having encouraged an uprising, is the first participant in Trump’s demonstration on Jan. 6 to face a qualification challenge, but will almost certainly not be the last.

Fein said the application in North Carolina was based on the primary election plan there – it was to be held in March, but has now been pushed to May due to a redistribution case – but that other challenges are likely elsewhere.

“We fully intend for this to be the first of several,” he said.

He declined to give names, but a number of GOP lawmakers also spoke at the January 6 meeting, working to push Trump’s plan to stay in power despite losing the election.

Alabama Representative Mo Brooks, for example, asked members of the convention on January 6 if they were ready to sacrifice their lives, as their ancestors had done: “Are you willing to do whatever it takes to fight for America? ” he screamed. “The fight begins today.”

Regardless of their level of responsibility for the chaos and violence that happened shortly after at the Capitol, however, it necessarily pales in comparison to Trump’s guilt.

Trump started lying about the election results that started in the wee hours of November 4th. After his legal challenges ran out and the Electoral College voted 306-232 in favor of his opponent Joe Biden on Dec. 14, Trump quickly turned to a far-reaching plan to overthrow the election during the congressional ceremonial assembly to confirm it.

He began inviting his followers to come to Washington on the appointed day, and then got his staff to hold a demonstration speech just before the appointed hour. There, with the White House as his backdrop, he told his crowd that the rules were different now and that if they did not “fight like hell” that day, they would lose their land.

After his own vice president, Mike Pence, publicly announced that he would not agree to the coup attempt, Trump attacked Pence in a Twitter post, accusing him of lacking the “courage” to do what was necessary.

Four of Trump’s own supporters died in the ensuing riots, and 140 police officers were injured, some seriously. One officer died the next day and four others took their own lives in the following weeks.

Trump was sued in the House of Representatives after a two-party vote – 10 Republicans joined all Democrats – exactly one week after the Capitol attack on the charge of “inciting rebellion.”

Even Senate Republican leader Mitch McConnell, who eventually voted against convicting Trump, claiming the Senate could not convict a former president, called the attack a “failed uprising” on Jan. 6 itself.

Fein, Orr, and others expect that a disqualification challenge with the 14th Amendment based on January 6 may eventually go to the U.S. Supreme Court. “We know this can potentially be complicated,” Fein said.

Meanwhile, the challenge against Cawthorn may provide more first-hand evidence of the planning and events of January 6, 2021.

Because once the North Carolina State Elections Board of Elections has determined that a challenge on its face has enough evidence to move forward, the burden then shifts to the candidate to prove qualification, which could involve having to testify under oath.

That ordeal Cawthorn may face in the coming weeks – and then Trumps, if he decides to run for president in 2024.

“Was there a revolt against the constitutional order? Yes,” Orr said. “The evidence against Trump is obviously overwhelming more than it is for Cawthorn.”


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