Earlier this year, a group of North Carolina voters sued to keep the far-right Republican candidate Madison Cawthorn off the ballot box in the mid-term elections. The challenge relied on an unusually obscure clause of the fourteenth amendment, which many legal scholars have suggested could see a renewed usage in a flurry of similar lawsuits against other public officials who helped pave the way to or participated in the January 6 riot.
The so-called Disqualification Clause lies in Section 3 of the text of the 14th Amendment, otherwise best known for ending the institution of chattel slavery and ensuring de jure equality for African Americans. It states that no person who had “Previously taken an oath … to support the Constitution” shall hold public office after engaging in “Insurrection or rebellion against the same”.
Historically, the Clause was included in order to reduce the influence of Confederacy loyalists in the South, who were therefore disqualified from all their current posts and barred from reaching an important public government position in the future. It is unclear whether the courts will be willing to grant any verdicts against the January 6 rioters based on this Clause.
There are two fundamental legal questions that will have to be resolved before any widespread success in this endeavor. Firstly, it is still far from a settled issue whether the January 6 riot can be legally defined as an ‘insurrection or rebellion’, rather than a ‘treason’, which carries much lighter sentences. Nonetheless, many federal prosecutors and Democratic-led Congress committees have already used the term, and there are good reasons to believe that it will stick. It was, after all, clearly instigated largely by White nationalist terrorist groups, with January 6 seeing multiple incidents of racism against Black police officers and other people of minority descent. If the final House Select Committee report investigating the incident ends up explicitly linking the actions of rioters to the Disqualification Clause, as many legal experts have argued it should, its implementation will become much more straightforward.
The second issue concerns the practical and procedural difficulties in reviving the Clause for modern judicial processes. Nonetheless, a notable law article has recently proposed a detailed framework precisely to resolve this issue, and there are encouraging signs of revival in enforcement. For the first time since 1917, a New Mexico court disqualified a county official earlier this year on the basis of Section 3 for his participation in the January 6 insurrection.
Currently, Former President Trump is back and announced his 2024 Presidential candidacy despite breaking several laws in office and is currently still under investigation by the U.S. Attorney General.
If this encouraging trend continues to bear fruit, we could finally see some of the much-deserved accountability against the people who disgraced our nation and desecrated the democratic process on the basis of a lie last January.
