Thursday, April 01, 2021

H.R. 1405--An Act to Enforce Section Three of the Fourteenth Amendment

Gerard N. Magliocca

I want to take a moment to talk about H.R. 1405, the legislation introduced in the House to enforce Section Three of the Fourteenth Amendment. The text of the bill is here.  The bill is an excellent start as Congress reflects on how to respond to the events of January 6th. Here are some initial observations:

1. The bill states that "clear and convincing evidence" shall be the standard of proof in civil actions to oust an ineligible officeholder or declare someone ineligible as a candidate. This higher burden of proof should alleviate concerns about the unfair application of Section Three.

2. The bill gives the Attorney General the authority to bring a Section Three enforcement action. There is no private right of action. This will help to avoid nuisance lawsuits and create some uniformity in the application of Section Three.

3. The bill provides that Section Three actions involving some federal officeholders and candidates for federal office must be heard by a three-judge District Court in the District of Columbia. This avoids the problem of forum shopping and the risk that a single biased District Judge will find the facts.

4. The bill provides for expedited appeal to the Supreme Court from the ruling of the three-judge District Court. This ensures a prompt resolution of any Section Three issues so that the next round of elections can proceed in an orderly manner. 

I hope that the Judiciary Committee promptly sets up a hearing on the bill.

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