A voter challenge to
U.S. District Judge
The judge’s April 18 ruling wades into unprecedented legal territory centered around Article 3 of the 14th Amendment, which bars from office any official who swore to protect the Constitution and then has “engaged in insurrection or rebellion against the same [United States], or given aid or comfort to the enemies thereof.” The provision hasn’t been invoked since 1919, when Congress refused to seat a member convicted of spying for Germany.
Greene “has not carried her heavy burden to establish a strong likelihood of success on the legal merits in this case,” Totenberg wrote, acknowledging Greene could lose her seat in Congress.
Totenberg’s decision upholds Georgia election law and rejected Greene’s contention that the 1872 Amnesty Act protected not only Civil War insurrectionists but all future officials who participate in an insurrection. She acknowledged her views are at odds with a decision issued last month by a North Carolina federal judge who dismissed a similar challenge to the candidacy of
Under Georgia law, a state administrative judge will hold a hearing and make a recommendation to Secretary of State Brad Raffensperger (R), who can disqualify Greene from the ballot. Greene previously has accused Raffensperger of covering up election fraud in Fulton County, which includes Atlanta, and called for him to be investigated.
Any decision Raffensperger makes can be appealed in state court.
Then-President Donald Trump’s recorded telephone call to Raffensperger pressuring him to “find” enough votes to overturn Georgia’s vote for Joe Biden in the 2020 election became a key part of Trump’s second impeachment trial.
The case stems from lawsuits filed by voters represented by Free Speech for People, an advocacy group.
U.S. District Judge Richard Myers rejected the complaint against Cawthorn. Myers ruled that the 1872 Amnesty Act not only absolved those who committed treason during the Civil War but also protects Cawthorn and all elected officials today, even if they did commit insurrection.
The North Carolina State Board of Elections didn’t appeal, and the U.S. Court of Appeals for the Fourth Circuit refused a request by Free Speech for People for an emergency stay. It set a motions hearing for May 3.
Totenberg wrote: “It seems much more likely that Congress intended for the 1872 Amnesty Act to apply only to individuals whose disabilities under Section 3 had already been incurred, rather than to all insurrectionists who may incur disabilities under that provision in the future. This reading is supported not only by the text of the statute and the practical limitations on Congress’s authority, but also by pure common sense.”
Robert “Mike” Rasbury, one of the voters who filed the complaint against Greene, said in an interview that he contacted lawyers for Free Speech for People after hearing about the Cawthorn challenge. A self-described “big tent conservative” and retired chief warrant officer who lives in Greene’s 14th Congressional District, he said he was dismayed watching the Jan. 6 riot on TV.
“It seemed like a powerful argument that if you are involved with an insurrection you aren’t eligible to hold office,” Rasbury said in an interview.
North Carolina, Georgia, and many other states allow voters to challenge the qualifications of those seeking office, though those typically focus on whether candidates meet age requirements or are registered in the proper district. The burden is on candidates to prove their qualifications by providing items such as birth certificates or proof of residence.
Lawyers for Free Speech for People argue that Cawthorn, Greene, and any other sitting official have the same burden to prove they didn’t support an insurrection when echoing Trump’s false claims of election fraud or when they defended Jan. 6 rioters as patriots and political prisoners.
Attorney James Bopp, Jr., representing both Greene and Cawthorne, filed emergency petitions to keep the states’ election boards from even holding hearings on the matter. Bopp argued the rules violate due process rights, and the U.S. Constitution prevents local officials from weighing in on a matter that belongs exclusively to Congress.
‘Prove a Negative’
The state administrative judge who will oversee the proceedings agreed to shift the burden of proving Greene participated in an insurrection to voters, writing that the stakes are far different than typical spats over age or residence.
“This case is an entirely different matter. ... The issue is whether (Greene) is disqualified by the provisions of the 14th Amendment. Justice does not require (Greene) to ‘prove a negative,’” the hearing official wrote.
The official did, however, reject Bopp’s motion to stop voters’ attorneys from subpoenaing her, while acknowledging whether “she testifies in her case in chief on her own behalf is entirely within (Greene) and her counsel’s discretion.”
The court “sees no basis for quashing the subpoena,” administrative law judge Charles Beaudrot wrote. “To the contrary, the seriousness and urgency of this matter, the expedited nature of the hearing, and the resulting limitations on any prehearing discovery in this matter all weigh heavily against such action.”
Greene has been among the most vocal members of Congress in supporting both Trump’s false claims of election fraud and coming to the defense of those charged in the Jan. 6 attacks. She has visited those charged with Jan. 6 crimes in jail, called them political prisoners, and advocated in speeches and on Twitter for Americans to defend Trump’s claims of election fraud.
Michael T. Morley, the Sheila M. McDevitt Professor of Law at Florida State University, said the case is so unusual that it is not surprising to see federal judges wrestling with a nearly unprecedented challenge. Still, he and other Constitutional scholars said there is little chance the challenges to Greene or Cawthorn will succeed because only Congress has the right to reject or disqualify its members.
“This an obscure area of law that federal judges don’t have a lot of experience dealing with. I can’t think of a case within my lifetime where it’s been invoked like this,” Morley said. “Courts are making their way, but at the end of the day there is enough Supreme Court precedent to say that this is a decision for Congress, and not individual states.”
The case is Greene v. Raffensperger, N.D. Ga., No. 1:22-cv-01294, 4/18/22.
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