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Efforts To Ban Congressmen and Senators From Reelection For January 6 Is Unconstitutional

Efforts To Ban Congressmen and Senators From Reelection For January 6 Is Unconstitutional

Regardless of if you hold that January 6 was a full-blown insurrection or a protest with some people who got out of hand, the efforts to block certain members of Congress from running again are without any legal residence or merit.

Several voters have filed challenges in North Carolina against Rep. Madison Cawthorn and in Wisconsin against Republican Sen. Ron Johnson, Rep. Tom Tiffany, and Rep. Scott Fitzgerald, claiming that all are not qualified to run for reelection under the 14th Amendment.

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But here is where the problem starts, there has to date not been one charge of insurrection; the FBI came out and said there is no evidence of a coordinated insurrection happening, yet they claim there may have been such an event; these people think that is enough to stop these people from running again.

It is noteworthy that not a single protester arrested for criminal trespass, assaulting police officers, and other actions at the Capitol has been charged under 18 U.S.C. Section 2383, which makes it a crime to engage in “any rebellion or insurrection against the authority of the United States.” Additionally, no member of Congress has been arrested, charged, or indicted for any actions taken on January 6.

Yet the challengers are claiming that these members of Congress are disqualified from holding office under Section 3 of the 14th Amendment, which was ratified in 1868. Section 3 was aimed at the former Confederacy and said no one could be a member of Congress or hold any federal office who had previously held such a position if they “engaged in insurrection or rebellion.”

Yet the people were never given this right without acts of Congress, as was seen in 1872, where according to Section 3, Congress voted with 2/3rds vote to remove members who served in the capacity of Congress or the military for the Confederacy.

Further, Article I of the Constitution lists the three qualifications required to be a representative or a senator (age, citizenship, and residency). Add to this the SCOTUS ruling on U.S. Term Limits, Inc. v. Thorton; the U.S. Supreme Court said that no state could impose any additional qualifications for a candidate running for Congress; you quickly see this is a dead-end street.

The Supreme Court also said that a state cannot dress up an additional qualification as a ballot access measure since that is “an indirect attempt to accomplish what the Constitution prohibits [the state] from accomplishing directly.” Any attempts by officials or courts to refuse to allow a candidate’s name to be listed on the ballot because of his or her alleged participation in insurrection fail this test.

Finally, attempts to disqualify candidates because they objected to the certification of certain electoral votes in the joint session of Congress on January 6 have no legal merit. The objections and the subsequent votes on the objections were made in full compliance with the process outlined in the Electoral Count Act of 1887.

The Electoral Count Act provides that an objection can be filed jointly by a senator and a representative. Upon such an objection being made, the joint session for counting electoral votes is temporarily suspended while Congress debates and votes on the objection. If the objection is voted down, the counting resumes, which is exactly what happened on January 6, 2021.

The effort to have members of Congress barred from having their names on ballots based on claims that they participated in an insurrection on January 6 or objected to electoral votes should fail. Congress permanently eliminated the insurrection disqualification in the 14th Amendment in amnesty acts that are still in force today, and the objections to the electoral votes were filed in accordance with federal law.

All of these efforts and threats are a desperate attempt to gain political advantage through unconstitutional actions. They are a waste of time and resources and should be dismissed.

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Yet this is what we see from one select side of the political spectrum, who thinks if they can’t defeat the candidate in a fair election, bar them from running.

The worry is that activists will shop for activist judges, who will try to hold up the ability to run until the day of the election, thus using judicial interference to do what they can’t do in an election.

Thanks to Hans von Spakovsky of The Heritage Foundation, who contributed to this report.

We are committed to truth and accuracy in all of our journalism. Read our editorial standards.

About The Author

Timothy Benton

Student of history, a journalist for the last 2 years. Specialize in Middle East History, more specifically modern history with the Israeli Palestinian conflict. Also, a political commentator has been a lifetime fan of politics.

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