Friday, November 05, 2021

Section Three Action Items

Gerard N. Magliocca

We are fast approaching the first anniversary of the Capitol riot. In that connection, let me suggest two areas that are ripe for action on the application Section Three of the 14th Amendment to that violence.

First, the House January 6th Committee should consider the issue. At this point, the Committee is still gathering facts. Media reports indicate that the Committee is also looking at legislative proposals. (One, for example, is a reform of the Electoral Count Act.) If those reports are true, then Section Three action should also be on the table. At a minimum, a House Committee report outlining how Section Three might apply to what occurred on January 6th would be helpful in any subsequent litigation on ballot eligibility.

Second, state legislatures need to step up. There is doubt about how Section Three can be enforced due to Chief Justice Chase's 1869 circuit opinion holding that the provision is not self-executing. States, though, can enact their own enforcement legislation. Right now no state says anything about Section Three as a requirement for holding federal or state office. A handful of states have some generally phrased eligibility provisions that arguably encompass Section Three, but that leaves a lot unsaid. To prevent anyone linked to the January 6th chaos from running for or serving in office--state or federal--states should make clear in their law that Section Three is an eligibility requirement for those positions.    

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