Destroying Democracy To Save It: Democrats Lose Another Effort To Disqualify A GOP Member

Authored by Jonathan Turley,

For two years, Democrats have been trying to disqualify dozens of Republicans from appearing on ballots for supporting the challenge to the certification of the 2020 election or declaring the election to be stolen.

It is premised on a deeply flawed historical and legal view of a provision under the Fourteenth Amendment. In the name of democracy, these Democrats have demanded that courts prevent voters from being able to vote for incumbent members. Yet, scholars like Harvard Professor Laurence Tribe have endorsed this sweeping interpretation. It has been rejected repeatedly in the courts.

The latest such ruling comes from the Arizona Supreme Court which ruled that Democrats could not prevent Rep. Paul Gosar (R-AZ) from appearing on the ballot in 2022.

In the age of rage, nothing says democracy like preventing people from running for office.

Last year, Democratic members called for the disqualification of dozens of Republicans. One, Rep. Bill Pascrell (D-N.J.) demanded the disqualification of the 120 House Republicans — including House Minority Leader Kevin McCarthy(R-Calif.) — for simply signing a “Friend of the Court brief” (or amicus brief) in support of an election challenge from Texas.

These members and activists have latched upon the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — which was written after the 39th Congress convened in December 1865 and many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.

Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.” So, members drafted a provision that declared that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

By declaring the Jan. 6th riot an “insurrection,” some Democratic members of Congress and liberal activists hope to bar incumbent Republicans from running. Even support for court filings is now being declared an act of rebellion. House Speaker Nancy Pelosi (D-Calif.) helped fuel this movement — before Jan. 6 even occurred — by declaring that the Republicans supporting election challenges were “subverting the Constitution by their reckless and fruitless assault on our democracy which threatens to seriously erode public trust in our most sacred democratic institutions, and to set back our progress on the urgent challenges ahead.”

This effort failed on legal grounds in seeking o bar Rep. Madison Cawthorn (R-N.C.) from running for office due to his actions related to the Jan. 6, 2021. It failed on factual grounds in seeking to bar Rep. Marjorie Taylor Greene (R., Ga.), even after a federal district court wrongly allowed a hearing to be held.

Now the Arizona Supreme Court has ruled that not only did the challengers lack the standing to bring the case but Arizona Supreme Court Chief Justice Robert Brutinel reaffirmed that this is a power left to Congress:

“Qualifications of its own Members,” appears to vest Congress with exclusive authority to determine whether to enforce the Disqualification Clause against its prospective members. However, we need not decide these issues because we hold that A.R.S. § 16-351(B), which authorizes an elector to challenge a candidate “for any reason relating to qualifications for the office sought as prescribed by law, including age, residency, professional requirements or failure to fully pay fines . . . ,” is not the proper proceeding to initiate a Disqualification Clause challenge. By its terms, the statute’s scope is limited to challenges based upon “qualifications . . . as prescribed by law,” and does not include the Disqualification Clause, a legal proscription from holding office. 

The court case is Thomas Hansen v. Mark Finchem, No. cv-22-0099.