Wednesday, January 26, 2022

Better Now Than Later

Gerard N. Magliocca

One thread of commentary in some of the popular writing about Section 3 of the Fourteenth Amendment is that challenging the eligibility of candidates is not a good idea. There might be a political backlash. Or we should just let the voters decide. 

Assessing the political implications of these lawsuits is above my pay grade. But there is a practical consideration that counsels for action now. Take Congressman Louis Gohmert, who faces allegations about his involvement in the insurrection. Gohmert is not running for reelection. He is instead running to be Texas Attorney General. But if Section Three applies to him, then he is ineligible to serve as AG.

Suppose nobody challenges Gohmert's eligibility in the GOP primary. He wins. Then nobody challenges his eligibility in the general election. He wins. Somebody will inevitably challenge his eligibility once he is the Texas Attorney General. A private party that is subject to some action by the Texas AG will attack the action on the merits but also say, in essence, that Gohmert is an imposter. (In other words, that his action is unlawful because he does not lawfully hold his post.) There are different ways of thinking through that issue, which of course came up during Reconstruction, but the point is that it'll be painful and confusing.

An eligibility challenge to a sitting official (especially for an important state executive post) creates many headaches. An eligibility challenge to a candidate, by contrast. avoids many of those problems. 



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