Aziz Huq, Tom Ginsburg Write About the Pitfalls of Section 3 Disqualification for Democracy
A New Mexico official who joined the Capitol attacks is barred from politics – but the little-known law behind the removal has some potential pitfalls for democracy
A county court in Santa Fe, New Mexico, on Sept. 6, 2022, became the first in more than 150 years to disqualify a person from public office because they participated in an insurrection.
District Court Judge Francis Mathew found that Couy Griffin, a former county commissioner and founder of the group Cowboys for Trump, had participated in the violent U.S. Capitol attack on Jan. 6, 2021. Mathew invoked a nearly forgotten part of the 14th Amendment, called Section 3, which can disqualify certain people from state or federal office if they have “engaged in insurrection or rebellion” or given “aid or comfort” to the United States’ enemies.
The clause was first adopted after the Civil War to keep former Confederates from participating in politics. The amendment says that disqualified people are barred for life from either running for or being appointed to office. But Congress can vote by a two-thirds majority to waive this ban.
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