By MORGAN LEE and NICHOLAS RICCARDI (Associated Press)
Two recent U.S. Supreme Court actions have opened the way for a new legal possibility where local and state officials may be disqualified from office permanently for participating in “insurrection” or providing “aid and comfort” to enemies of the Constitution, based on a post-Civil War era addition to the nation’s foundational legal document and how the courts interpret it.
On Monday, the Supreme Court declined to hear an appeal from a former New Mexico county commissioner who was removed from office after being found guilty of trespassing during the Jan. 6, 2021, attack on the U.S. Capitol. The state judge who disqualified him from office did so because his actions violated Section 3 of the 14th Amendment, which was added to the Constitution in 1868 to prevent Confederates from returning to government.
This decision followed a quick high-court ruling that Section 3 cannot be used against federal officials or candidates until Congress creates a law outlining procedures to do so. This includes former President Donald Trump, who is the focus of a national effort to prevent his potential return to the White House via the 14th Amendment.
However, the court’s ruling on the Trump case clearly stated that the provision could still be applied to state and local officials.
Taken together, these actions signal a new legal environment as the organizations that pushed for Trump’s disqualification to the Supreme Court restart efforts to focus on state and local officials connected to Jan. 6.
“This is a bit of returning to the course we expected to be following, which was holding individuals accountable, who are low-level officials, who still broke their oath by coming to D.C., engaging in insurrection,” said Stuart McPhail, an attorney with Citizens for Responsibility and Ethics in Washington, a left-leaning group whose lawsuit against Trump ended up at the Supreme Court.
Ron Fein, legal director of Free Speech For People, which brought several other actions seeking to disqualify Trump and Republican members of Congress for their role in the Capitol attack, wouldn’t comment on his group’s plans. But, he said, one legal fact remains clear.
“Section 3 continues to be a viable way of protecting against insurrectionists in state and local government,” Fein said.
CREW, which brought the lawsuit against Trump’s candidacy that landed at the Supreme Court, has identified state lawmakers it believes might be vulnerable to challenges under Section 3. It already has succeeded in one case, brought against the local official in New Mexico.
Otero County Commissioner Couy Griffin, a founder of the promotional group Cowboys for Trump, is the only elected official thus far to be banned from office in connection with the Capitol attack, which disrupted Congress as it was trying to certify Joe Biden’s 2020 electoral victory over Trump.
The lawsuit against him cited his violation of Section 3, which prohibits anyone who swore an oath to uphold the Constitution and then “engaged in insurrection or rebellion” against it or gave “aid and comfort” to its enemies, from holding future office.
McPhail says there is a new feeling of urgency to take action under that clause against state or local officials connected to Jan. 6 — before they run for federal office and can't be sidelined.
“It does create this motivation to bring cases from low-level officials now because then you can actually win them and get some type of relief in judgments, whereas if you wait, you may have lost the opportunity,” he said.
Based on the Supreme Court’s decision in the Trump disqualification case, a state or local official removed under Section 3 could still hold federal office, all the way up to president, unless Congress acted.
Griffin said his disqualification was politically motivated. He and his defense attorney said Monday’s dismissal by the Supreme Court holds foreboding implications, creating a pathway for partisan actors to use Section 3 of the 14th Amendment in unpredictable ways in the future.
“All you have to do is go to a really friendly county, with a good friendly judge that’s politically on your side, and then you get rid of your opposition,” said Peter Ticktin, Griffin’s attorney in the appeal to the Supreme Court.
Derek Muller, a Notre Dame law professor, said he wouldn’t be surprised if Section 3 litigation eventually targets people for reasons well beyond Jan. 6.
“I don’t know how widespread it’s going to be,” he said. “I’m sure people are going to start thinking creatively about what it means — if you’re supporting, Hamas, the Taliban, (Black Lives Matter).”
Muller added that the court system is well-equipped to sort out frivolous uses of Section 3, just as it does in other cases of ballot challenges: “In most of these cases, I think it won’t pass the initial motion to dismiss.”
The bigger question, he said, is how do courts address issues that the Supreme Court dodged in its ruling on the Trump case: What constitutes an insurrection under Section 3? How do First Amendment rights and other constitutional guarantees interact with its provisions?
In Griffin’s case, New Mexico Judge Francis Mathew found that Griffin assisted an insurrection without engaging in violence, contributing to a delay in Congress’ certification of the presidential election.
He ruled that Griffin spread lies about the 2020 election being stolen from Trump in a series of speeches during rallies held across the country, calling on crowds to go with him to Washington on Jan. 6 and join the “war” over the presidential election results.
“Knowledgeable 19th century Americans including Section 3’s framers would have regarded the events of Jan. 6, and the surrounding planning, mobilization and incitement, as an insurrection,” Mathew ruled. “Mr. Griffin also incited, encouraged, and helped normalize the violence on January 6.”
Griffin, a Republican, was convicted separately in federal court of entering a restricted area on the Capitol grounds on Jan. 6 and received a 14-day prison sentence. The sentence was offset by time served after his arrest in Washington, where he had returned to protest Biden’s 2021 inauguration. That conviction is under appeal, but is unlikely to influence enforcement of Griffin’s ban from office.
“According to Judge Mathew, it has never been necessary for a person to have a criminal conviction in order to be disqualified under Section 3, neither by the courts nor Congress,” Judge Mathew wrote.
CREW brought the case against Griffin partly because New Mexico is one of several states that allow any citizen to bring a private right of action to prove that an elected official is not qualified to hold office. In states that do not have such provisions, attorneys note that those who want to remove people under Section 3 may have other options, such as ballot challenges filed with the secretary of state or an election board.
McPhail said that there is no single solution that works for enforcing Section 3 in states.
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