Could the 14th Amendment block Lauren Boebert from the ballot?
The Constitution’s disqualification clause might apply to some members of Congress
Rep. Lauren Boebert delivers a speech on the floor of the U.S. House minutes before an insurrection overran the Capitol on Jan. 6, 2021. (C-SPAN)
Is Rep. Lauren Boebert eligible to run for reelection this year?
According to the 14th Amendment, the answer might be “no.” And, because Boebert herself is unlikely to acknowledge her own potential disqualification, it would be left to other authorities, such as the Colorado secretary of state or voters in the representative’s district, to seek enforcement of the Constitution’s anti-insurrectionist provision.
Far from being some frivolous legal abstraction, this principle already anchors a challenge to the candidacy of Rep. Madison Cawthorn of North Carolina. A group of voters in Cawthorn’s district last month filed a challenge to his candidacy with the North Carolina State Board of Elections. The case frames Cawthorn’s activities around the Jan. 6 insurrection as a violation of the 14th Amendment’s disqualification clause.
If the clause could apply to Cawthorn, it could also apply to Boebert.
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There can be little doubt that what occurred on Jan. 6, 2021 — when former President Donald Trump inspired a violent mob of supporters to storm the U.S. Capitol and halt the constitutional process of Electoral College ballot-counting — was an insurrection. A majority in the U.S. House voted to impeach Trump for “incitement of insurrection.” Trump’s own lawyer during the impeachment trial in the Senate said “everyone agrees” there was a “violent insurrection” at the Capitol.
The North Carolina voters assert that they have reasonable suspicion that the election denier Cawthorn was involved in planning the attack on the Capitol or related events in Washington, D.C., on Jan. 6 “with the advance knowledge that it was substantially likely to lead to the attack.”
The House committee that’s investigating Jan. 6 reportedly sought phone records from Cawthorn. The voters note that two days before the attack, he promoted the Jan. 6 Trump demonstration by tweeting, “January 6th is fast approaching, the future of this Republic hinges on the actions of a solitary few … It’s time to fight.” He has expressed support for insurrectionists, calling them “political prisoners.” The voters’ challenge cites many examples of Cawthorn’s behavior that demonstrate he engaged in insurrection or aided the Jan. 6 attack after he had sworn an oath to support the Constitution.
All this appears to match the criteria for disqualification spelled out in Section 3 of the 14th Amendment, adopted after the Civil War. It says, “No person shall be a Senator or Representative in Congress … who, having previously taken an oath, as a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Now consider Boebert’s insurrection-related activities, which are substantially similar to Cawthorn’s.
Boebert was one of the House’s most vocal proponents of Trump’s “big lie” that the 2020 election was fraudulent. Rolling Stone reported that Boebert’s office was in communication with organizers of the Jan. 6 events that led to the insurrection. At least two Democratic members of Congress have said they saw Boebert giving a tour of the Capitol to a “large” group on a day shortly before the insurrection, the kind of activity one lawmaker termed “reconnaissance.” She had been scheduled to speak at Trump’s Jan. 6 rally, and though she didn’t end up taking the stage, she attended the event. On the morning of Jan. 6, Boebert tweeted, “Today is 1776,” widely understood by insurrectionists to signal a war of rebellion, and “1776” was repeatedly chanted by members of the mob as they committed insurrection.
During a House floor speech Boebert gave, arguing for the rejection of electoral votes from Arizona at the very moment the mob was breaching the Capitol, Boebert said of the insurrectionists, “I have constituents outside this building right now.” After lawmakers for their safety had been locked in the House, Boebert broadcast to the world that Speaker Nancy Pelosi had been moved from the chambers in a tweet that Rep. Eric Swalwell said demonstrated she was “more closely aligned with the terrorists than the patriots.” Boebert since the attack has sought better treatment for Jan. 6 rioters.
If Cawthorn could be disqualified from serving in Congress, Boebert could, too.
A test of her eligibility might be close at hand.
We've received an outpouring of interest from people who live in Colorado and are interested to find out how Section 3 of the 14th Amendment applies to Rep. Boebert.
– Ron Fein, of Free Speech For People
Ron Fein, legal director of Free Speech For People, a national nonprofit group that is representing the North Carolina voters, said in an interview with Newsline, “We are certainly planning to file additional candidate challenges to other members of Congress or elected officials who were involved in the Jan. 6 insurrection.”
He declined this week to specify Boebert as one of those targets, but he said, “Rep. Boebert certainly attracted our attention.”
In Colorado, a challenge to Boebert’s candidacy would be made through state court. Voters in the 3rd Congressional District could bring such a challenge, and Fein said, “We’ve received an outpouring of interest from people who live in Colorado and are interested to find out how Section 3 of the 14th Amendment applies to Rep. Boebert.”
He noted, however, that Secretary of State Jena Griswold herself could act to enforce the Constitution.
“Our view is that the Colorado secretary of state should uphold Section 3 of the 14th Amendment, just as she might if someone filed paperwork to run for Congress who was underage or not a U.S. citizen,” Fein said.
Whether Boebert can be shown to have engaged in or aided the insurrection within the scope of the 14th Amendment, she indisputably committed sedition, and so far she has paid no cost for that behavior. A constitutional challenge to her candidacy and the legal proceedings that would ensue could at the very least force onto the public record facts about Boebert’s insurrection-related activities that remain hidden, and compel her to answer for her role in the attack.
Such transparency is essential, especially if Boebert remains on the ballot.
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