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A Civil War-era measure could keep Rep. Marjorie Taylor Greene off the ballot

MARY LOUISE KELLY, HOST:

A group of voters and liberal activists in Georgia are using a Civil War-era measure to try to keep Republican Congresswoman Marjorie Taylor Greene off the ballot. That provision, part of the 14th Amendment to the Constitution, is designed to block anyone who has, quote, "engaged in insurrection or rebellion against the United States" - block them from office. It's been a century since the provision has been used, but the activists argue that Congresswoman Greene's comments and actions surrounding the January 6, the Capitol riot, should disqualify her.

Well, joining us for some 14th Amendment nitty-gritty, NPR senior editor and correspondent Ron Elving. Hey, Ron.

RON ELVING, BYLINE: Good to be with you, Mary Louise.

KELLY: So the 14th Amendment - people may not be as familiar with the full text as they are with some other amendments. It was a huge post-Civil War change to the Constitution. Just remind us what all is in it.

ELVING: There's a great deal in it. It was passed by Congress the year the Civil War ended and ratified by the states. And two years later, 1868, is one of the longest of all the constitutional amendments. But its most important sections conferred full citizenship and attendant rights to the formerly enslaved. That completed the work of the Emancipation Proclamation and, if you will, the war itself.

But it also included other sections meant to punish people who had participated in the war on the side of the Confederacy. Of course, official Washington regarded that as a rebellion or an insurrection. And one of those, Section 3, is what's called the disqualification clause.

KELLY: All right, which is the one that we are here to discuss. What was it meant to do? Who was it meant to exclude?

ELVING: It was meant to get rid of people who wanted to come back to Congress and be part of the federal structure or get back into the military or have executive positions if they had sworn an oath to the Constitution before the Civil War and then cleared out and engaged in the rebellion or offered aid and comfort to those who did. Mostly, they are talking here about people who left office to actually participate on the Southern side, usually as military officers, as many members of Congress did, or officials of the Confederate government. But as the reconstruction period ended, a few years later, Congress passed the Amnesty Act of 1872. The original impetus for all this faded, and since then, it's become something of a relic, as we have not had another insurrection or rebellion on the scale of the Civil War.

KELLY: And we said it has been a century since it's been used. When was the last time?

ELVING: In 1919, it was used to exclude a member of Congress from Milwaukee, Wis. His name was Victor Berger, and he had been elected as a Socialist Party candidate before the war. He was also born in Austria, and he was accused of spying for the enemy during World War I. So because he had previously taken an oath of office, swearing allegiance to the Constitution, the disqualification clause was invoked to exclude him after the war.

Milwaukee kept voting for him, though, and (laughter) after the Supreme Court threw out the espionage charge, the Congress gave in and let him come back and serve. And he served three terms in the 1920s.

KELLY: Well, so how viable is it as a tactic to be used today to keep current members out of Congress or bar potential members?

ELVING: A federal judge in Georgia, as you mentioned, has allowed it as a basis for a lawsuit that would bar Congresswoman Greene from the ballot in that state based on her role in the events of January 6. But it's been a different story for similar lawsuits against members in North Carolina and Arizona. Now, all of these rulings are on appeal, but in the meantime, the committee investigating January 6 has heard testimony and seen emails suggesting that nearly a dozen members of the House may have been involved in one way or another planning resistance to the official proceedings on January 6.

KELLY: Well, and just real quick, it makes me wonder if the activists who want to use it to kick Marjorie Taylor Greene off the ballot might also have their sights on former President Trump?

ELVING: The activists bringing these suits have said they intend to also go after former President Trump, but that may be yet another legal longshot. The language refers to executive officers but does not specifically say the president.

KELLY: NPR's Ron Elving. Thanks for the history lesson.

ELVING: Thank you, Mary Louise. Transcript provided by NPR, Copyright NPR.

Ron Elving is Senior Editor and Correspondent on the Washington Desk for NPR News, where he is frequently heard as a news analyst and writes regularly for NPR.org.