Greene v. Raffensperger
On January 6, 2021, a crowd of thousands violently breached the Capitol in a bid to prevent Congress from certifying the results of the 2020 presidential election. Representative Marjorie Taylor Greene was among those lawmakers who helped to plan the January 6 rally. She participated in dozens of planning meetings ahead of the January 6th rally, publicly promoted the event on social media, and repeatedly told her supporters to attend the event and “fight for Trump.”
Based on her participation in these events, several registered Georgia voters challenged Greene’s candidacy for federal office, alleging that she is disqualified from holding office under Section Three of the Fourteenth Amendment. Ratified in the wake of the Civil War, Section Three disqualifies from holding state or federal office any elected official who swore an oath to uphold the Constitution, but then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to the enemies thereof.”
In response, Greene filed suit in federal court, claiming that a statute passed in 1872 immunizes her from Section Three disqualification. That act removed Section Three disqualification from certain former Confederates, but Greene argues that it also gave amnesty to all potential future insurrectionists. The district court disagreed, concluding that the plain text of the 1872 Amnesty Act precludes its prospective application. Greene appealed that ruling to the Court of Appeals for the Eleventh Circuit. On June 14, 2022, CAC filed an amicus brief in support of the Georgia voters, urging the court to affirm the district court’s ruling.
Our brief makes two main points.
First, our brief explains that the text and history of the 1872 Amnesty Act make clear that it was passed to grant immunity retrospectively to certain former Confederates, not to grant immunity prospectively to all future insurrectionists. By providing that “all political disabilities imposed by” Section Three “are hereby removed,” the text of the 1872 Act plainly indicates that it only applies to Section Three disqualifications that were “imposed” in the past. The history of the statute also confirms the plain meaning of the text—that it only applies to individuals who had been disqualified from holding office prior to its passage. Before the 1872 Act was passed, Congress had been passing private bills to relieve former Confederates of Section Three disqualification. The 1872 statute was passed to take the place of that cumbersome process. In other words, rather than pass a statute with a long list of names, Congress elected to use a general phrase to identify those former Confederates it was relieving of disqualification. As our brief makes clear, it was not a statute designed to grant amnesty to potential future insurrectionists.
Second, our brief shows that Congress has previously concluded that Section Three disqualifications cannot be removed prospectively. In 1919, the House investigated whether Congressman Victor L. Berger, who had been convicted of violating the Espionage Act of 1917, had incurred Section Three disqualifications. Berger argued that Section Three had been “entirely repealed by an Act of Congress.” But instead of pointing to the 1872 Act, he pointed to a similar statute Congress had passed in 1898 which stated that “the disability imposed by Section Three of the fourteenth amendment to the Constitution of the United States heretofore incurred is hereby removed.” Berger argued, much like Representative Greene does now, that Section Three gives Congress the power to prospectively grant amnesty to future insurrectionists. The House disagreed, concluding that disqualifications could not be lifted prospectively and that Section Three barred Congressman Berger from serving as a member of Congress.
In summary, our brief argues that Greene’s efforts to evade accountability for her role in the January 6 attack is at odds with the text and history of the statute on which she relies. And her argument, if it were accepted, would mean that Section Three of the Fourteenth Amendment is currently without effect.
June 14, 2022
CAC files amicus curiae brief11th Cir. Amicus