SOME REMARKS ON THE SECTION 3 ELECTION CHALLENGES
Josh Blackman and Seth Tillman, two constitutional law professors, argued recently in a New York Times guest essay that the Marjorie Taylor Greene and Madison Cawthorn cases (and others like them) cannot be decided at the state level, by either state courts or election boards.
I have argued the same in previous Twitter threads (though I came at the matter from a different direction).
However, one of my biggest disagreements (at least I assume it’s a disagreement) with Blackman and Tillman centers on this sentence:
Why only these two possibilities?
Do they think that plaintiffs (private citizens like the plaintiffs in North Carolina and Georgia) are barred from bringing a civil suit for an alleged violation of Section 3 of the Fourteenth Amendment in federal court? For example, are they implying that they lack standing to do so?
If so, this is puzzling, since neither the federal district court in North Carolina (Cawthorn) nor the one in Georgia (Greene) declined to give the plaintiffs standing to request that federal courts intervene in the cases.
In Georgia, a federal district court allowed the challengers’ lawsuit to proceed at the state level. In North Carolina, the federal district court denied the challengers’ motion to intervene in the state on their behalf, but that was decided on the merits, not for lack of standing.
The judge’s decision in North Carolina was based on an interpretation of the Amnesty Act of 1872 that was received with justified indignation and derision by the state prosecutor and a leading constitutional scholar who specializes in the Constitution’s disqualification clause.
The challengers have appealed to the Fourth Circuit Court of Appeals. That court has expedited the case, and will hear oral arguments on May 3.
Note that Cawthorn and Greene are civil cases, and that Section 3 implicates only civil violations, not criminal ones. Thus, there is no reason to deny standing to plaintiffs in these cases on the grounds that Cawthorn and Greene can only be blocked through (successful) prosecution.
It is important to distinguish here between Section 3 of the Fourteenth Amendment and the Insurrection Act.
Section 3 of the 14th Amendment provides:
This clause of the U.S. Constitution does not provide for criminal penalties; it only lays down conditions for eligibility for office.
However, there are insurrection statutes in the U.S. code that do provide for criminal penalties.
The insurrection statutes that are relevant to the Section 3 challenges are 18 USC §2383 and 18 USC §2384. (The first Insurrection Act, which was passed by Congress in 1807, is a different statute.)
18 USC §2383 and 18 USC §2384 are criminal statutes: they provide for the criminal penalty of incarceration upon conviction.
18 USC §2383 reads as follows:
For those who conspire with others to accomplish the same aim, the penalties provided by 18 USC §2384 are even more serious:
To secure a conviction for violation of 18 USC §2383 or 18 USC §2384, prosecutors must establish to a court’s satisfaction that the defendant has committed, beyond a reasonable doubt, the offenses charged in the indictments. “Beyond a reasonable” doubt” is the highest burden of proof, and it is a very hard one for prosecutors to meet.
Obviously, then, a trial for violation of a criminal statute like 18 USC §2383 or 18 USC §2384 is fraught in a way that a trial for a violation of a provision providing for civil penalties only (in this case a clause of the U.S. Constitution) is not.
It is not a crime under Section 3 to run afoul of its provisions: it is just that anyone who has violated Section 3 is ineligible for federal office, including the office of representative or senator in the Congress of the United States.
In a trial for violation of 18 USC §2383 or 18 USC §2384, the burden of proof required by a court could be either “preponderance of evidence” or “clear and convincing evidence,” depending on the jurisdiction. Both are significantly lower burdens of proof than the one that must be met in a criminal trial.
An important point to note here is that, while the burden of proof in such a trial would be lower than for a criminal trial, the kind of evidence that would be presented would be the same in the two cases.
We do not know how much evidence the Department of Justice might have acquired in the course of its investigations, but we do know that Rep. Jamie Raskin claimed recently that the January 6 committee already has:
Thus, Raskin appears to have claimed that the January 6th committee’s evidence already meets the “beyond a reasonable doubt” standard (= “evidence that proves”). Raskin, therefore, has implied that the evidence the January 6 committee already has meets the standard federal prosecutors would have to meet in a criminal trial.
Much of the relevant evidence is already publicly available, and much more is expected to be available to the Section 3 challengers in June, when the January 6 committee is expected to hold its public hearings, and by late summer or early fall, when it is expected to publish its findings and report.
A civil trial for alleged violation(s) of Section 3 would be perfectly straightforward: Present evidence to a jury (the appropriate venue being a federal court) meeting one of the two burdens of proof in civil cases (depending on the jurisdiction); get conviction(s); and thereby compel the blocking or removal of the defendants from the ballot.
Such litigation would indeed be perfectly straightforward, because Section 3 of the Fourteenth Amendment is unquestionably self-executing — meaning that it is effective as it stands without further legislation or legal action.
I feel obliged to assert this because Blackman and Tillman actually deny it. They do so by citing an 1869 court case that they claim is on-point for cases like the Cawthorn and Greene cases.
In fact the case they cite is not on-point at all. In fact, it is an astoundingly poor precedent to cite for the proposition that Section 3 is not self-executing (that is, that it needs congressional clarification and amendments via Section 5 of the Fourteenth Amendment in order to be enforceable).
The case at issue (called Griffin, after the name of the defendant) concerned a man who was first arrested, tried, convicted, and then incarcerated on the charge of shooting with the aim to kill. Griffin claimed in a state court in Virginia that his habeas corpus rights had been violated under the plain terms of Section 3, which had been ratified on July 9, 1868.
The defendant argued that the presiding judge in the case (Sheffey) had no right to be a judge under Section 3 of the 14th amendment because he had taken an oath many years before to uphold the U.S. Constitution, but during the Civil War years had supported the Confederacy, thus running afoul of Section 3.
Griffin argued that these undisputed facts nullified the judge’s decision in his criminal case, since under Section 3 of the Fourteenth Amendment Judge Sheffey’s authority as judge had itself been nullified.
Judge Salmon B. Chase, the circuit judge in the appellate trial (who later became Chief Justice of the United States) described some of the difficulties and complexities of the case that he felt stood in the way of a straightforward application of the plain meaning of Section 3.
Here are some of them (the following list is by no means exhaustive):
1) If Section 3 were applied according to the letter, it would wreak havoc on the judicial system in the South, which was already in a state of great disorder. As Chase pointed out, it wasn’t just the individuals concerned that would be affected: a strict application of Section 3 would invalidate innumerable acts of office by those individuals, right down to the state’s wills and trusts. Total chaos.
2) Chase also argued that Section 3 could not be applied directly to the case before him due to acts of Congress that nullified the force of the section. He pointed to the fact that after the Civil War had commenced, Congress had made the provisional government that controlled a small part of the then-state of Virginia during the war as well as its successor post-Civil War government of the whole state legitimate governments, even under the Fourteenth Amendment. If so, Chase wondered, how could so many — maybe most — of its office holders be deemed ineligible to be state office holders under the Section 3 ban?
3) Perhaps most importantly for us, Chase’s court was not presented directly and simply with a Section 3 challenge. The issue before Chase’s court was whether the defendant should be released after conviction and incarceration on the grounds of mistrial, and Section 3 entered the case rather indirectly because it was the basis for the claim that there was a mistrial of the criminal case.
This was strange and perplexing. Judge Chase put it this way:
“It is not pretended that imprisonment for shooting, with intent to kill, is unconstitutional, and it will hardly be affirmed that the act of 1807 [the original Insurrection Act] throws any light whatever upon the question…”
Now the main point for us in all this is that none of the difficulties that bedeviled this case and troubled Judge Chase apply to the present cases (Cawthorn and Greene).
That’s right. Not a single one.
For example, none of the cases today would create chaos in the laws and judicial system of any of the states. And the Cawthorn and Greene challenges are straight up Section 3 challenges. They are not entangled, as Griffin was, in any other civil or criminal matters.
That is what makes the invocation of the Griffin case by Blackman and Tillman so bizarre — even outrageous. If a case is going to be offered as a precedent, there must be at least one element that drove the decision that applies to the present case(s). In the case of Griffin, however, there isn’t a single one.
The glowing time-stamp (early post-Civil War years) that appears on every line of Chase’s opinion makes it incomprehensible, really, that Blackman and Tillman feel Griffin is an on-point precedent showing that Section 3 is not self-executing in our day and time.
Chase clearly wanted to apply Section 3 in a straightforward way (he says so in so many words in a number of places in his opinion), but most notably, he felt he could not do so only because of considerations that have absolutely no application to the cases of interest to us.
If we think of Chase arriving here in a time machine, it is unimaginable that he would find Section 3 to be non-self-executing now (as it certainly is on its face), since each and every one of the special difficulties presented in Griffin are absent in today’s cases.
(You can read the Griffin case and judge for yourself whether it is “on point,” as Blackman and Tillman allege. (Chase’s opinion can be found at the end.)
https://cite.case.law/f-cas/11/7/?full_case=true&format=html
All the foregoing considerations matter when we try to estimate when, where, and how the Cawthorn and Greene cases will proceed.
If Blackman and Tillman are right (at least as I read them), Cawthorn and Greene will inevitably end up on their 2022 ballots (assuming they win their primaries) because they could only be blocked by a federal court (read SCOTUS) ruling in a federal case brought by prosecutors.
Clearly, that’s not going to happen, for a number of reasons I won’t go into. But what is likely to happen, in my view, is that the plaintiffs’ attorney (Ron Fein) will take these cases as soon as it is appropriate to do so to federal court.
Initially I thought that Fein would have to work his cases through the North Carolina and Georgia state courts for jurisdictional reasons, and either win at the respective state supreme courts, or, if he didn’t, petition for cert to SCOTUS in the event that he lost.
But on further thought, I am convinced that this will not be necessary. Since the whole issue doesn’t really belong in the state courts or state election boards anyway (in any case they certainly can’t be the final deciders), Fein can take the cases to federal district court directly when confronted (if he is) by any definitive adverse state court or secretary of state rulings.
Federal jurisdiction is not as clear for primary ballots as it is for general elections. In general elections, the winning candidate is elected directly to a federal office, whereas in primary elections, the candidates are not candidates — at least directly — for any federal office, and the winner only wins a place on the general election ballot.
In the case of a Section 3 challenge to a name being placed on a general election ballot involving a federal election, however, things couldn’t be simpler. Establish in court — the proper venue being a federal court — that the defendants have violated Section 3 by a preponderance of the evidence or by the clear and evident standard of proof. Once a conviction has been secured in a federal court, that’s it.
The language of Section 3 is perfectly clear: “No person shall be a Senator or Representative in Congress…”, so any conviction of insurgency by a federal court makes the defendant ineligible for office under Section 3, and therefore ineligible for running for office and being placed on the ballot.
The federal government is the regulatory authority over any federal election process, and enforcement is vested in the U.S. Department of Justice. An attempt by a state to place an ineligible candidate on the ballot would be prosecuted by the Department of Justice as a violation of Section 3 of the 14th Amendment and, therefore by implication, of federal election law.
