Destroying Democracy to Save it? Court Advances Effort to Block GOP Candidates from Ballots

Below is my column in the Hill on the recent decision of a federal judge to allow a challenge to Rep. Marjorie Taylor Greene (R., Ga.) from appearing on the ballot as an insurrectionist. In my view, the underlying claim is meritless. The theory, supported by figures like Harvard Professor Laurence Tribe, runs against the clear language and history of the Disqualification Clause of the 14th Amendment.

Here is the column:

As the country braces for the midterm elections, the left seems to be rallying behind three D’s: Democracy, Disinformation and Disqualification. The latter effort just received a huge boost from a judge in Georgia who has allowed a challenge to knock Rep. Marjorie Taylor Greene (R-Ga.) off the ballot as an insurrectionist. Nothing says “democracy” like preventing others from voting.

Many of us have criticized Greene for her inflammatory rhetoric and her extreme views. No less dangerous, though, is the means being used by some of Greene’s critics to get rid of her. It is all part of a new movement to defend democracy by denying it. To paraphrase the Vietnam strategy, democracy can only be saved by destroying it through the denial of speech or the right to vote.

Many Democratic politicians and pundits have long pushed for censorship as vital to freedom. However, if such freedom-is-tyranny claims seem Orwellian, they are nothing compared to the push to disqualify dozens of candidates from appearing on ballots.

Judge Amy Totenberg ruled that critics could potentially strip Greene from the ballot due to her public comments before and after the Jan. 6, 2021, riot in Congress. Totenberg ruled that Greene’s critics could bring a challenge under the Constitution’s 14th Amendment, known as the “Disqualification Clause.” This is the same clause cited by some liberal members of Congress and legal experts as a way to bar dozens of Republicans, including former President Trump, from office for allegedly engaging in insurrection against the United States or giving aid and comfort to its enemies.

This argument most recently was used against Rep. Madison Cawthorn (R-N.C.), who also has been opposed by House colleagues on both sides of the aisle. Cawthorn prevailed in a federal court, which dismissed that effort; an appeal of that ruling will be heard May 3 by the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.

There are similar efforts to block members like Arizona GOP Reps. Paul Gosar and Andy Biggs from appearing on state ballots.

Totenberg gave a green light to these constitutional claims despite both the constitutional text and history showing that the claims are meritless.

Section 3 of the 14th Amendment was written after the 39th Congress convened in December 1865, following the end of the Civil War. At the time, many members were not pleased to see former Confederates like Alexander Stephens (D-Ga.), the Confederacy’s vice president, appear in Congress to retake the very oath they previously violated by waging war against the country.

Whether Jan. 6 was a riot or an actual insurrection remains a matter of deep and largely partisan disagreement — but the disqualification clause was written in reference to a real Civil War in which more than 750,000 people died in combat. The Confederacy was a separate government with its own army, currency and foreign policy.

There is another problem: To the extent that a person can be disqualified under the 14th Amendment, it requires action from Congress, not a local board of election. Despite an otherwise long, careful opinion, Totenberg blithely set aside such details, including an 1869 decision by then-Chief Justice Salmon P. Chase. The case in question challenged the right of Hugh W. Sheffey to hold a Virginia state court office, given his support for the Confederacy. Chase ruled that Section 3 did not disqualify Sheffey because “legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment, and disqualification from office “can only be provided for by Congress.”

Congress later passed the Amnesty Act of 1872, which overrode the Disqualification Clause except for “Senators and Representatives of the thirty-sixth and thirty-seventh Congresses.”

The Supreme Court has repeatedly ruled that states cannot impose their own qualifications for Congress because it would “erode the structure envisioned by the Framers.” Under such an approach, partisan state election boards could simply conclude that a member is an insurrectionist and prevent voters from being able to make such choices for themselves.

Totenberg simply insists that barring an insurrectionist is the same as barring someone from running for president who is not a natural-born citizen or who does not meet the age requirement for Congress. However, age and citizenship are easily ascertainable qualifications stated in the Constitution for all candidates. There is no additional finding or action required for such disqualifications. Totenberg is suggesting that a local board declaring a representative to be an insurrectionist is the same as confirming the age or place of birth of a candidate.

As with the calls to censor disinformation, the growing calls for disqualification represent a serious threat to our democracy. Countries like Iran routinely strike candidates from ballots due to their underlying views or perceived disloyalty. Just as free speech allows good ideas to counteract bad ideas, free elections allow good candidates to prevail over bad candidates. The problem is that you have to be willing to live with the judgment of your fellow citizens rather than control what they read or who they may vote for.

In fairness to the court, Totenberg complained that “the parties devoted little time and few pages to the complicated questions inspired by this novel situation.” As such, she did not feel comfortable in granting an injunction for Greene. However, that expression of reluctance at the end of the opinion belies the sweeping language used to get there.

With the other pending cases, this issue may now be headed for a Supreme Court showdown. In the meantime, the Democrats will likely see in November whether the “three D’s” resonate as well with voters as they did with this judge.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

501 thoughts on “Destroying Democracy to Save it? Court Advances Effort to Block GOP Candidates from Ballots”

  1. Only a lawyer believes the courts should rule supreme. Everyone else believes it should be the people.

    1. What actually was more than said is States are guaranteed a Republican form of government. Which includes democratic principles. Nothin was said about socialism facism or communism.

      1. Add the G wa hurried to lunch. To continue many things are included in the constitution …oaths of office come specifically to mind which directly bar three or more acts. PRESERVE PROTECT AND DEFEND THE CONSTITUTION against all enemies foreign or domestic. Includes those that put them in office as well as those that threaten embedded democratic principles in our Constitutional Republic.

        Let none be confused. Pay no heed to those that sow false confusion.

  2. The collection of CJ ‘End Times’ participants is easily identified by their uniform paid contempt for the American form of government and willingness to suck on Soros/Rothschild wealth until self-satisfied. They do NOT demonstrate contempt for any evil American conduct abroad, considering it is just the 3 corporate state doing business. Destruction of the spirit of Constitutional Law with equal standing for all citizens is their goal. Witness BLM parasites spending all the donated money on themselves.

    1. If you’re concerned about “Soros/Rothschild wealth” and silent about the wealth of the Walton family (Wal-mart), Bezos, Musk, Buffet, Gates, etc., you’re probably an anti-Semite.

      1. I don’t know about anyone else but I am so over being called a racist. If I call someone out for wrong doing that does not make me a racist. Your anti-Semite most definitely makes you a racist.
        Have a Nice Day

  3. “To the extent FORCE was used – it was used to secure actual rights”

    A great deal of the force was used illegally, as with the force used to break the windows of the Capitol Building and enter through the windows, evading security. See, for example, the video at the bottom of this comment. The guy who broke the window on the left is Dominic Pezzola, charged in the Proud Boys conspiracy with Nordean, Biggs, Rehl, Donohoe, and Tarrio.

    “why weren’t Kavanaugh protesters ? One of those took an axe to a senators door”

    As I already pointed out to you (here: jonathanturley.org/2022/04/23/destroying-democracy-to-save-it-court-advances-effort-to-block-gop-candidates-from-ballots/comment-page-2/#comment-2177258 ) and you ignored:
    Some were fined and others were jailed.

    “One Kavanaugh protestor who took an AXE to a senators door – had the axe returned.”

    I doubt it. I suspect that you’re confusing two very different events that took place years apart (2020 rather than 2018) and over 1000 miles apart (Fargo, ND, not DC): 
https://jonathanturley.org/2021/11/26/antifa-member-who-took-axe-to-senate-office-given-probation-and-his-axe-back/
    
But if you name the Kavanaugh protester you allege “took an AXE to a senators door – had the axe returned,” we can look up the details.

    You keep repeating this false claim about Kavanaugh protesters not having been charged and your unsubstantiated claim that one of the Kavanaugh protesters “took an axe to a senators door”

    You apparently do not want to learn.

    1. “conspiracy with Nordean”

      Since ATS is at it again, I propose he answer a question. He objects to others, saying Jan6 people are being denied bail as justice is absent.

      What about Nordean? The evidence against him for anything major like violence is non-existent. He was initially permitted out on house arrest but then put in jail, primarily in solitary confinement.

      ATS explains how Nordean is in jail when you say such occurrences aren’t happening. His father offered over $1 million bail risking his business and assets. Alternatively, you can admit you were lying.

      His underlying crime was supporting Trump. Videos show a man walking from the Washington Monument and through an open door of the Capitol Building where the police stood by. The release of such videos was met with strenuous resistance from the Biden administration.

      To my knowledge, the worst charges against him are non-violent, conspiracy and obstruction, both of which are on tenuous grounds not deserving a jail sentence without bail where most of the time was spent in solitary confinement.

      1. Jonathan Tyrley: Stop with the “many of us have criticized” attempt to destroy our leaders. This is how you guys tried to take down President Trumo too. Did you criticize
        Ilhan Omar? AOC?

      2. Correct he zeros in on the over use of Words such as sexist, racist, bigot, as a continuación and inflamation instead of —refusing their use.

        Prime example is over use of ‘persons or person to replace genders.

        How? Is there a ‘perdaughter?

        Describes how silly person with its over elongated garbage sounds.

        1. Best way to defeat racist sexist bigoted etc.is treat it as a four letter word. It will soon dissolve into its founders the socialist party

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