Use of Civil War-era law used to challenge Marjorie Taylor Greene candidacy a longshot

Marjorie Taylor Greene wearing sunglasses smilingCongresswoman Marjorie Taylor Greene worked the crowd at a late March Trump Rally in Commerce. Greene will have to defend her right to appear on the ballot after a federal judge allowed a challenge from a group of voters to move forward. Ross Williams/Georgia Recorder

by Ross Williams, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
April 20, 2022

It’s not unusual for a candidate’s qualifications to be challenged before a big race, but the case facing Congresswoman Marjorie Taylor Greene is unique.

“What is different about this one is that it’s utilizing this law that was passed after the Civil War, during Reconstruction, to try to use that as the reason to say that she has basically engaged in actions that have disqualified her from holding further office,” said Georgia State University political science professor Amy Steigerwalt. “Part of the question which is really coming up with this is whether or not this law is meant to apply now in 2022, or was it explicitly meant to apply to those who literally fought in the Civil War?”

Greene is set to head to court Friday to argue why her name deserves to appear on the May 24 ballot after a federal judge ruled in favor of a group of Georgia voters seeking to remove it.

The voters argue that Greene was involved in the Jan. 6 riot at the U.S. Capitol, which they say amounted to an attempted insurrection against the government.

They are asking Secretary of State Brad Raffensperger to disqualify her based on a provision in the Fourteenth Amendment.

Most people know the Reconstruction-era Fourteenth Amendment as extending rights to those who were previously enslaved, but a section of it bars those who “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies” of the government from holding office.

It was created by lawmakers in response to President Andrew Johnson’s accommodation to the defeated Confederates, said Georgia State University constitutional law professor Anthony Michael Kreis.

“One of the ideas here was that you needed to remove individuals who conspired and served in the Confederacy, from the body politic, while you’re re-instituting civil government in the South, creating new state constitutions and constituting new state legislatures and getting Reconstruction off the ground,” he said. “The idea is that a political disability would be imposed on people who engage in insurrection, rebellion, and that Congress would then have the ability later down the road to write to remove those with disabilities if they saw fit.”

Greene’s attorneys argued that Congress had seen fit to do so with the Amnesty Act of 1872, which removed restrictions against most of those who participated in the rebellion. Another federal judge applied that logic to a similar case against North Carolina Congressman Madison Cawthorn, blocking an effort to remove him from the ballot.

Judge Amy Totenberg disagreed, writing that lawmakers did not intend to provide amnesty for future rebellions.

Greene’s lawyers also argued the complaint violates her rights to free speech and due process.

Totenberg again disagreed, writing that “a candidate’s right to appear on the ballot does not rise to the level of a fundamental constitutional right, nor does a challenge to a candidate’s qualifications necessarily equate to a severe burden on that candidate’s First Amendment rights.”

Totenberg also cast doubt on Greene’s arguments that a drawn-out courtroom process could last beyond the primary, noting that all parties appear committed to settling the dispute as quickly as possible and that Greene’s name can still appear on the ballot if arguments and appeals continue beyond May 24.

“The only question about the status of Plaintiff’s candidacy moving forward is whether the votes cast for her on those ballots will ultimately be counted,” she wrote.

Greene is scheduled to make her case in front of Judge Charles Beaudrot Friday morning. Beaudrot will present findings to Raffensperger, who will make the final decision.

Raffensperger’s name will be on the primary Republican ballot next to that of former Congressman Jody Hice, who, like Greene, has raised unsubstantiated doubts about the 2020 election.

Raffensperger earned former President Donald Trump’s ire for not illegally finding enough votes to allow him to win the state. Weighing in on the political future of Greene, a Trump favorite, is likely not what Raffensperger would most like to be doing ahead of the primary, Steigerwalt said.

“It brings up these issues again, puts him in a position to, once again, have to enforce the rules, which he has done, and he has enforced them correctly and fairly all the way through,” she said. “But it certainly is probably not what he wants to have to deal with right now, especially given the context of the primary challenges he’s facing.”

Greene struck a defiant tone talking about the case at a recent Trump rally.

“The same nasty people from Washington that think they are better than all of you, that hate every single one of you because they hated President Trump, and they hate me, they’re trying to take away your right to vote in my district, because now they’re coming after me to remove my name off the ballot,” she said. “Well, let me inform them of something right now. You’re going to lose. You’re not going to take my name off the ballot because we will defeat you.”

To call Greene a divisive figure would be an understatement. Democrats have a long list of complaints against her, from her support of QAnon conspiracies and threats against elected officials before her election to her public flouting of Congressional mask rules and recent speech at an event led by a white nationalist.

Greene’s fans in her northwest Georgia district seem to love the same things about her that Democrats detest, praising her ability to mix it up with her political foes and frustrate elites on both sides of the aisle.

Four Republicans and three Democrats have signed up to replace her.

Democrat Marcus Flowers is one of the challengers who have launched long-shot bids to flip the deep red district in northwest Georgia.

Flowers told reporters last month when he officially qualified as a candidate that he is counting on disenchanted conservatives to cross over out of embarrassment should Greene survive the primary. Flowers, or any Democrat, would need to win over Republicans while maximizing turnout in Cobb County to be competitive. Parts of Democratic-leaning south Cobb were added to the conservative district during last year’s special redistricting session.

“I don’t think (Greene) even understands what constituent services means. She hasn’t been here in our district doing the work. She’s been out all over the country speaking at white nationalist rallies, embarrassing the people of Georgia,” Flowers said.

Mainstream Republicans and Democrats both say they’d love to see Greene out of Congress, but it’s not clear whether invoking a Civil War era law is the way to go about it.

“The lawsuit against MTG to prevent her from running again for Congress probably has merit, but will require years to go through litigation and appeals,” said Charles Lutin, a physician challenging Greene as a Republican. “If such a suit is allowed to proceed, you can be sure that the far right will immediately turn the theory against anyone left of center to prevent their running against a fraudster like MTG. In short, we the people need to sort this out at the ballot box by rejecting MTG and her ilk.”

Greene opponents should not place too much hope in a section of the Constitution not meaningfully focused on since the 1800s, Kreis said.

“It’s really an underdeveloped area because this is, in fact, such a rare occurrence,” he said. “The other thing, of course, is that we don’t have a really robust history of practice, as a consequence, of how states should adjudicate what is a rebellion, what’s an insurrection, who’s been part of it?”

A state like Georgia is not likely to be the one to test those waters, he added.

“So I just really see this kind of going nowhere. Other states might be more successful if similar challenges are made, for example, if someone made a challenge for somebody who lived in Illinois, New York or California, you may see something develop there, but I sincerely doubt it will happen here.”

Still, Totenberg’s decision to allow the challenge to advance could be seen as a positive sign for people opposed to the Jan. 6 wing of the GOP, Steigerwalt said.

“This decision possibly gives a little bit more power to similar challenges,” she said. “There was the one in North Carolina, but there’s also suggestions that the same group is going to file similar challenges against, I think, (Arizona Republican) Congressmen (Paul) Gossar (Andy) Biggs, and so this perhaps gives a little bit more weight to those challenges as well for the idea that they can go forward.”

One realm in which the case is likely to help Greene is fundraising. She has consistently been one of the House’s top fundraisers, though her campaign reported its first net loss during the first quarter of 2022.

“She, I’m positive, will use this as a fundraising tool,” Steigerwalt said. “Especially if it fails, to say ‘Look, what I did was just fine, and how dare they come after me, especially using this outdated law.’ Those who support her already support her. I’m not sure that it’s going to change any minds in that sense. But it does certainly give her more ammunition to use for the sort of very public campaign that she is running, one that is very much about saying ‘Everyone’s coming after me, they’re trying to silence me. They’re trying to cancel me.’”

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: Follow Georgia Recorder on Facebook and Twitter.