Eleventh Circuit Writes Final Chapter in Marjorie Taylor Greene Candidacy Challenge

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit yesterday ruled that Representative Marjorie Taylor Greene's federal lawsuit seeking to halt a state-level challenge to her candidacy was moot. The court said that the state process ran its course in her favor, and so there was nothing left for the federal courts to enjoin.

The case started when a group of Georgia voters filed a claim under Georgia's "Challenge Statute" that Marjorie Taylor Greene was ineligible for election to the House under Section 3 of the Fourteenth Amendment. That provision says that a person can't be candidate for office if they took an oath as an officer to support the Constitution of the United States and subsequently "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Greene sued in federal court to halt the state-level challenge, arguing that it violated her First Amendment right to run for public office; the Due Process Clause; Article I, Section 5, insofar as it exceeded the state's power to regulate election procedures and usurped the House's role as judge of the qualifications of its members; and the 1872 Amnesty Act (which she claimed removed the "disability" imposed by Section 3 prospectively to all members of Congress).

The federal district court ruled against Greene, and Greene appealed to the Eleventh Circuit.

Meanwhile, in the state challenge, a Georgia administrative law judge ruled that Greene's challengers failed to show that she fit within Section 3. Georgia Secretary of State Brad Raffensperger adopted the ALJ's conclusion, and the state courts affirmed.

Given that the state challenge ran its course, the Eleventh Circuit yesterday dismissed Greene's federal case as moot. The court said nothing about the merits of the challengers' Section 3 claim against Greene.

But Judge Branch, in a concurring opinion, argued that Greene was likely to prevail on her claim that the state process would have violated Article I, Sections 4 and 5 by imposing an additional qualification on her--that she defend herself against a Section 3 challenge in a state process:

[I]n purporting to assess Rep. Greene's eligibility under the rubric of Section 3 of the Fourteenth Amendment to the U.S. Constitution, Georgia imposed a substantive qualification on her. The State was not merely, as the district court incorrectly concluded, enforcing the preexisting constitutional disability in Section 3. Instead, the State Defendants, acting under the Challenge Statute, forced Rep. Greene to defend her eligibility under Section 3 to even appear on the ballot pursuant to a voter challenge to her candidacy--thereby imposing a qualification for office that conflicts with the constitutional mechanism contained in Section 3. In other words, by requiring Rep. Greene to adjudicate her eligibility under Section 3 to run for office through a state administrative process without a chance of congressional override, the State imposed a qualification in direct conflict with the procedure in Section 3--which provides a prohibition on being a Representative and an escape hatch.