The Independent View: Reconstruction-Era Law Could Keep Trump Off Presidential Ballot In Some States

Should Trump run for the White House again, an obscure Reconstruction-era Law could keep him off the Ballot in Six Southern States, because of his Incitement of the Jan. 6 Insurrection.

The Six States affected by the 1868 Law: Alabama, Florida, Georgia, Louisiana, North Carolina, and South Carolina, currently together have 88 Electoral Votes, or 33% of the Total needed to Win the Presidency. Trump won All of them in 2020, except for Georgia, which he lost by 12,000 Votes.

The Third Section of the 14th Amendment, Prohibits People who swore to Defend the Constitution, but who subsequently took part in an Insurrection against the U.S., from holding State or Federal Office. Other Language in that Post-Civil War Amendment says: But Congress may by a Vote of Two-Thirds of each House, remove such Disability.

But the 1868 Law, that Readmitted the Six States, put the Burden on them to keep those who have been Involved in Insurrections from seeking Office, potentially making it considerably easier to keep Trump off their Primary and General Election Ballots.

“It’s still on the books,” said Gerard Magliocca, a Law Professor at Indiana University who Studies the Reconstruction period. He added that the Language could help those seeking to Disqualify Trump and other Candidates who appeared to Encourage the Jan. 6, 2021, Assault on the Capitol.

“The law is still there. And it could be appealed to.” “We fully intend to pursue this type of challenge if Mr. Trump chooses to run.”

Ron Fein, whose Free Speech For People group is already Challenging North Carolina Rep. Madison Cawthorn’s (R-11th District) attempt to seek Reelection because of his participation in the Jan. 6 Pre-Riot Rally, said that the Constitutional Ban on Insurrectionists running for Office applies everywhere, and the 1868 law merely helps Explain what Congress meant.

“Whether you’re in Maine or Mississippi or Alabama, the 14th Amendment applies,” he said. “Maybe there’s more clarity in these states.”

Fein likened the Insurrection Disqualification to existing Exclusions in the Constitution, such as the way Age and Citizenship would Disqualify a 12-year-old who lived in another Country from running for Federal Office. “Does anyone seriously think that that person should be allowed on the ballot? I don’t think so,” he said.

“It would have been great if Congress had already taken care of this,” Fein said, but added that he and his group plan to Lodge 14th Amendment Complaints, wherever possible, against those involved with the Jan. 6 Attack, especially against Trump. “We fully intend to pursue this type of challenge if Trump chooses to run.”

In fact, the existence of that Law makes it easier to make an Insurrection-based Disqualification Argument against Candidates in the remaining 44 States and the District of Columbia, Fein said. “This adds clarity and maybe helps dispel arguments,” he said.

Michael Luttig, a Retired Federal Appellate Judge and long an icon to Conservatives, said the Existence of the 1868 Law would be Persuasive to Courts today regarding Congressional intent when it comes to the question of whether States can take action on their own. “The argument that the states can enforce Section 3 would be appealing — especially given the explicit statutory condition on readmission that the specified states would enforce Section 3,” Luttig said.

Robert Orr, a former North Carolina Supreme Court Justice who is working with Fein’s group, said it never made sense that Congress would have wanted to make Decisions regarding State Officials all over the Country. “Congress is not going to be determining the qualification of a sheriff in Moore County, North Carolina,” he said. “It’s not Congress’s role to make that determination.”

The Challenge to Cawthorn proceeded on the assumption that States have the ability to assess Federal Qualification Requirements: that Cawthorn’s Role in the Jan. 6 Insurrection Bars him from seeking that Office. North Carolina, like some but not All States, permits Residents to Challenge Candidate Qualifications. “It’s simply a question of following the state statute and determining whether Cawthorn is disqualified,” Orr said.

Fein said the Filing in North Carolina was based on the Primary Election Schedule there, it was to be held in March, but now has been pushed to May because of a Redistricting Lawsuit, but that other Challenges are likely elsewhere. “We fully intend for this to be the first of several,” he said.

A number of GOP Lawmakers also spoke at the Jan. 6 Rally and worked to push Trump’s Scheme to hold ontoPpower despite Losing the Election. Rep. Mo Brooks (R-AL, 5th District), for example, asked Members of the Jan. 6 Rally Crowd if they were ready to Sacrifice their Lives, as their Ancestors had done: “Are you willing to do what it takes to fight for America?” he screamed. “The fight begins today.”

Whatever their level of Responsibility might be for the Mayhem and Violence that happened shortly thereafter at the Capitol, though, necessarily pales in comparison to Trump’s Culpability.

Trump was Impeached in the House on a Bipartisan Vote, 10 Republicans joined All Democrats, exactly a week after the Capitol Attack on the Charge of “incitement of insurrection.” Even Senate Republican Leader Mitch McConnell (R-KY), who eventually Voted against convicting Trump, claiming that the Senate could Not Convict a former President, called the Assault a “failed insurrection” on Jan. 6 itself.

Fein, Orr and others, expect that a 14th Amendment Disqualification Challenge based on Jan. 6 could ultimately go to the U.S. Supreme Court. “We know that this could be potentially complicated,” Fein said.

In the meantime, the Challenge against Cawthorn could yield more Firsthand Testimony about the Planning for and Events of Jan. 6, 2021. Because once the North Carolina State Board of Elections has determined that a Challenge, on its face, has enough Evidence to go forward, the Burden then shifts to the Candidate to prove Qualification, which could involve having to Testify under Oath. That Ordeal could be Cawthorn’s to face in the coming weeks, and then Trump’s, should he decide to Run for President in 2024.

“Was there an insurrection against the constitutional order? Yes,” said Orr. “The evidence against Trump is obviously overwhelmingly more than there is for Cawthorn.”