ATLANTA (CN) — Despite a federal judge's order on Monday allowing a lawsuit that seeks to exclude GOP Congresswoman Marjorie Taylor Greene from May's primary ballot to proceed, legal experts are skeptical the effort to block her reelection bid can actually succeed.
U.S. District Judge Amy Totenberg ruled that a group of Georgia voters can proceed with their claim filed last month with the Georgia secretary of state's office alleging that Greene, a Republican and vocal supporter of former President Donald Trump, helped facilitate the riot at the U.S. Capitol on Jan. 6, 2021.
The 73-page order denied Greene's request for a preliminary injunction and temporary restraining order in a lawsuit she filed earlier this month asking the judge to prohibit enforcement of a law that the voters are using to challenge her eligibility.
Totenberg, a Barack Obama appointee based in Atlanta, wrote that Greene had failed to meet the "burden of persuasion" in her request.
In their administrative challenge, the voters argue that Greene is ineligible to run for reelection because she violated a provision of the 14th Amendment that disqualifies anyone "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."
Enacted after the Civil War, the provision was originally meant to keep former Confederate officials from winning congressional power in the reconstructed government, but has gained new attention following last year's Capitol insurrection.
“My impression of the lawsuit from the description that appears in the decision is that most of [Greene's] lawsuit is frivolous," said Clark Cunningham, professor of law at Georgia State University and W. Lee Burge Chair in Law & Ethics.
Cunningham added, "Though there’s more of a technical issue about whether the provision in the 14th Amendment, which was originally enacted in the context of the Civil War, whether Congress had sort of limited its effectiveness only to the Civil War, and Judge Totenberg does address that issue on the merits that that provision is still effective.”
Dave Oedel, chair of the constitutional law section of the State Bar of Georgia and a law professor at Mercer University, says that Totenberg's ruling barely keeps the challenge to Greene's eligibility alive and seems more like "procedural noise than constitutional substance."
“It seems unlikely to me that a fair hearing of any such charge of insurrection could be heard in a timely way while respecting due process," he said. "Georgia's challenge statute seems ill-designed to satisfy the high intensity of serious federal constitutional scrutiny."
Under the Georgia law at issue, referred to in Totenberg's order as the challenge statute, any eligible voter may challenge a candidate's qualifications by filing a written complaint within two weeks after the deadline for qualifying for the ballot.
Georgia's primary is set for May 24 and features party races for a U.S. Senate seat, all 14 congressional districts and statewide offices including governor, lieutenant governor, secretary of state and attorney general.
Gunner Ramer, political director of the Republican Accountability Project, said the best way to get Greene out of Congress is for another Republican to beat her out in the primary.
“We think Greene is one of the most anti-democracy Republicans around," Ramer said.
During a hearing scheduled for Friday, the Georgia voters will present their challenge before an administrative law judge in Atlanta. Free Speech for People, a national election and campaign finance reform group representing the voters, issued a subpoena for Greene to appear at the hearing and testify under oath.
This judge will then present their findings to Georgia Secretary of State Brad Raffensperger, a Republican who will determine if Greene is qualified to be on the ballot.