Drafted in the wake of the Civil War, Section 3 of the Fourteenth Amendment to the U.S. Constitution disqualifies certain people from holding office. It covers anyone who previously took an oath “to support the Constitution of the United States” and later “engaged in insurrection or rebellion” against the United States. The authors of the Fourteenth Amendment intended the provision to prevent the return of former members of Congress who had joined the Confederacy. However, Section 3 has resurfaced after the events of January 6, 2021.
Former President Donald Trump, who seeks election again this year, has faced efforts in various states to exclude him from the ballot under Section 3. Maine and Colorado have removed him from their primary ballots, but Trump is challenging both decisions. Meanwhile, various members of Congress faced (and defeated) this type of lawsuit before the 2022 election.
Last week, Pennsylvania Congressman Scott Perry became the latest politician to face a challenge under Section 3. Activist Gene Stilp has filed a lawsuit in Pennsylvania state court, arguing that Perry should be disqualified. (Stilp also filed a lawsuit in federal court to remove Trump from the ballot, but he withdrew the lawsuit and will pursue that effort in state court instead.) The lawsuit against Perry asserts that he believes that the victory of current President Joseph Biden resulted from voter fraud in the 2020 election. As a result, according to Stilp, Perry “was a leading proponent of using the January 6, 2021 Congressional presidential election certification process to disrupt the transfer of presidential administrations from Trump to Biden.” Among other things, the lawsuit alleges that he was involved with election deniers who sought to provide false sets of electors to overturn the election results.
Although Perry has not been charged with any crime, the FBI seized his cell phone while investigating the attempts of Trump supporters to undo Biden’s victory in the 2020 election. A court recently ordered him to disclose hundreds of texts and emails to the FBI in its election probe.
Stilp has asked the court to declare that Perry engaged in insurrectionist activity or supported insurrectionist activities, disqualifying him from the ballot. The lawsuit acknowledges that Perry has not been convicted of a crime and thus asks the court to declare that this is not necessary to trigger disqualification under Section 3.
Perry has served six terms in Congress, representing the 10th Congressional District of Pennsylvania. The Pennsylvania primary will be held on April 23. Candidates must file their paperwork to get on the ballot between January 23 and February 13.
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