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Wednesday, March 24, 2021

Congressman Brooks and Section Three of the 14th Amendment

Representative Mo Brooks of Alabama recently announced that he will run for the Senate in 2022. His campaign could create the first test of how the courts will address ineligibility claims under Section Three of the Fourteenth Amendment. Congressman Brooks spoke at the rally preceding the January 6th riot and said some incendiary things. I'm not convinced that Representative Brooks was "engaged in insurrection," but more facts could come out that would change my mind.

Consider, though, the very formidable problems involved in getting a court to consider this question at all. Will the Alabama election authorities decide on their own that Brooks is ineligible for the primary ballot? Very unlikely. Will any of his primary opponents make a Section Three challenge? Not if they want to win, as it's hard to see how challenging Brooks is a vote-winner. Maybe a fringe candidate with no chance of winning the primary would be willing to sue, but would there be standing for such a candidate? Hard to say.

If Brooks wins the primary next year, then his Democratic opponent would probably challenge his eligibility and might well have standing. But then that means the courts would need to resolve the issue between the GOP primary and November 2022. That's a short timeframe, which is not ideal. Now let's say Brooks wins. What if the Senate is controlled by Democrats in 2023 and they decide not to seat him?

All of this just repeats a point I've made  before, which is that Congress should take up H.R. 1405 (the Section Three enforcement bill) to create a clear framework for these sorts of challenges before the next election cycle begins.

Posted by Gerard Magliocca on March 24, 2021 at 01:40 PM | Permalink


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Regarding who would bring the primary challenge: Alabama's primary election challenges can be brought by any voter in that primary (Ala. Code § 17-13-71), but the challenge is then heard by the state party committee if I recall correctly.

Given that it's a Senate seat though, yes, it is incumbent upon the Senate to hold hearings on the matter and—if they see fit—exclude him. I don't think the courts would have any jurisdiction over any challenge from the results of a general election here, even with a statute (assuming Art. 1 sec. 5 can't be delegated).

And some things that I've recently found (and added to my Section 3 paper, though I haven't updated the SSRN draft yet) that may be of use in deciding whether any particular person engaged in insurrection:

Bouvier's Law Dictionary (1897) delineates between the different types of civil unrest (sedition, riot, mutiny, insurrection, rebellion, revolution);

and an 1894 N.D. Ill. grand jury charge aptly describes what is necessary for an insurrection charge (notably stating that incitement is engaging in insurrection). 62 F. at 830.

I ended up rewriting that section of my paper around these sources and using the Insurrection Act definition more for support (still insisting that the presidential proclamation should be necessary for Section 3 purposes).

Posted by: Myles Lynch | Apr 9, 2021 2:33:17 PM

I gather "some incendiary things" should mean more than one turn of phrase.

Anyway, there is news suggesting Taylor-Greene's ally among the insurrectionists (sic) in the Capitol. I assume she is running in 2022 too, so she too is a possible cite. Plus, since there is still a push to expel her -- and given she is more of a "poster girl" [to use a common term] of trouble in this regard, those who wish to highlight the 14A remedy very well might use her.

As to H.R. 1405, I don't see any text yet, but I welcome the professor's analysis [on these issues, I have disagreed with him some, but his analysis has been helpful] when it does.

Posted by: Joe | Mar 25, 2021 11:07:57 AM

Since there was no insurrection on Jan. 6, I don't think Brooks will have a problem in that regard.

Posted by: thegreatdisappointment | Mar 24, 2021 5:31:59 PM


Just worth noting, that, in that paper of Congress quoted in my first comment down there, it is stated that,I quote:

There also is some indication of how aid or comfort was interpreted under Section 3 soon after its ratification. After the Civil War, during a hearing to determine whether John D. Young provided aid and comfort to the Confederacy and, therefore, was ineligible to be seated in the House of Representatives, the Committee of Elections was of the “opinion that ‘aid and comfort’ may be given to an enemy by words of encouragement, or the expression of an opinion, from one occupying an influential position.

End of quotation:

So, according to the author of that paper, there is such possibility, that the word "enemy" may be relevant to, or can be legally associated with insurrection, and, as quoted, if comes from a person, occupying an influential position, it may implicate him.


Posted by: El roam | Mar 24, 2021 5:20:13 PM

If the case against Rep. Brooks consists of him saying "taking names and kicking ass",then the would be plaintiffs are woefully ignorant of populist language since this country was founded. What first comes to mind is the southern radical, who attacking the power of corporations at the beginning of the twentieth century said they have neither a soul to save or an ass to kick.

Posted by: PaulB | Mar 24, 2021 5:08:19 PM

Interesting. Worth noting, that it seems, that all stands probably, on his words, saying before riots, I quote:

“the day American patriots start taking down names and kicking ass.”

Here, to his response to lawsuit filed against him,titled:

"Alabama Rep. Mo Brooks responds to Capitol riot suit filed by impeachment manager Eric Swalwell"



Also, not to forget, it would be sufficient, to convict based upon other acts, and disqualify a person.I quote from very recommended Congressional paper (Research Service):

"As previously mentioned, prosecutions for insurrection under 18 U.S.C. § 2383 or treason under 18 U.S.C. § 2381, if successful, would result in a bar to “holding any office of the United States.” Consequently, any individuals convicted under those laws for engaging in activities related to the events of January 6 could be disqualified from holding current or future federal office without any specific congressional response to the events, and without regard to whether they had previously taken an oath to uphold the Constitution. A private injured party could also ask a judge to issue a writ of quo warranto to prevent the seating of, or oust from office, an individual who allegedly engaged in disqualifying activities. Although it is unclear who would have standing to bring such a suit, it is possible that opposing candidates or individuals eligible to hold the office in question could survive this constitutional, prudential inquiry."

End of quotation:

Finally, what is named as H.R.1405, refers probably to this, titled:

"H.R.1405 - Puerto Rico Data Collection Equality Act
116th Congress (2019-2020)"



And here to the Congress document or research mentioned:



Posted by: El roam | Mar 24, 2021 3:09:27 PM

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