Recently, new focus has been aimed at an obscure section of the Fourteenth Amendment which could keep such office holders as Representative Paul Gosar of Arizona (a double Creighton alum) off the ballot in his battle to get back into Congress.

Gosar is one of the guys wrapped up in the Jan.6, 2021, revolt at the U.S. Capitol (along with folks like Marjorie Taylor Greene of Georgia and Madison Cawthorn of North Carolina), and charged in law suits with being the kind of persons section three of the 14th Amendment aims to prevent from holding office. Many commentators say that even Donald Trump may be blocked for regaining the presidency if courts are favorable to plaintiffs in these actions.

The language in the amendment says no one who has engaged in “insurrection or rebellion” or given aid and comfort to the enemies of the U.S. or the states may be an office holder.  It goes on to say that Congress (both houses) may remove the disability by a two-thirds vote.

It’s never as easy as it seems (if, indeed, it seems easy).  For example, who has standing to bring a suit to keep a candidate off the ballot?

In the case of Gosar, the action was started in the Maricopa County Superior Court (where the state capitol is) so the rules of procedure, etc., are the Arizona rules, and they are different from the North Carolina rules. Under Carolina’s rules, the plaintiff has only a slight burden in asserting bad conduct by the defendant who then has the burden to show that he was not a rebel or insurrectionist.

The huge questions are: What is an insurrection and who are insurrectionists? The analyst must tread carefully between provocative, even incendiary speech protected by the First Amendment and incitement to riot (see Terminiello v Chicago, 337 U.S. 1 (1949) and Brandenburg v. Ohio, 395 U.S. 444 (1969).

In Cawthorn’s case, he prevailed in a federal district court to halt the state action.  A federal appeals court ordered a hearing, but as of this writing did not actually state who has standing to appeal, since the injunction is against the state election officials, and not against the original plaintiffs.  So…who may properly appeal in this case?

 Just for fun, assume Mr. Trump were the losing defendant in a Wisconsin case.  This could keep him off the ballot in that state, but arguably would have no effect anywhere else.

Finally, there is the question of whether the Federal Amnesty Act (17 Stat. 142, 1872), allowing Civil War rebels to hold office, applies to all other rebels since that time, as the federal trial judge in North Carolina ruled in the first stages of Cawthorn’s case.

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