ATLANTA (CN) — Appealing a federal judge's denial of her request for a preliminary injunction, an attorney for Georgia Republican Congresswoman Marjorie Taylor Greene argued Thursday before the 11th Circuit that a state law voters sued under to challenge her candidacy is unconstitutional.
Under the law at issue, any eligible voter in the Peach State can challenge a candidate's qualifications by filing a complaint with the secretary of state, who then decides if they can run based on findings presented by an administrative law judge.
Greene was deemed eligible for reelection by the Republican Secretary of State Brad Raffensperger in May, after Georgia Administrative Law Judge Charles Beaudrot held a day-long hearing in April in which a group of voters from her district unsuccessfully argued she should be disqualified from seeking reelection because she helped facilitate the U.S. Capitol insurrection on Jan. 6 2021.
The voters, represented by election and campaign finance reform group Free Speech for People, challenged Raffensperger and Beaudrot's decisions in the Fulton County Superior Court, where they were affirmed by Chief Judge Christopher Brasher.
Meanwhile, Greene appealed to the 11th Circuit after U.S. District Judge Amy Totenberg denied her request for a preliminary injunction and temporary restraining order in a retaliatory lawsuit she filed in the spring asking the judge to prohibit enforcement of the law the voters used to challenge her eligibility.
Free Speech for People has also appealed Brasher's ruling and now the voters' case is pending before Georgia's highest court, which will ultimately decide if votes for Greene will count in November's election.
"Isn't that an important piece for us to look out for?" said U.S. Circuit Judge Barbara Lagoa, a Donald Trump appointee, who suggested Thursday that the Atlanta-based appeals court hold Greene's appeal in abeyance until the Georgia Supreme Court issues its ruling.
Greene's' attorney James Bopp told the three-judge panel that it is Congress's responsibility to decide if a candidate is unqualified for the position, not the state's.
"My understanding is that Congress can decide if she's qualified once she is elected," agreed U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee.
The question of Greene's eligibility was centers on section 3 of the 14th Amendment, which was originally enacted to prevent former Confederate officials from winning congressional power in the reconstructed government following the Civil War.
The provision deems anyone who "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof," ineligible to hold office. It also states, "Congress may by a vote of two-thirds of each House, remove such disability."
U.S. Circuit Judge Elizabeth Branch, a Trump appointee, questioned how Congress will be able to rule on Greene or other candidates' qualifications if they are removed from the ballot.
Bopp argued Greene is protected by the Amnesty Act of 1872, which removed most of the penalties imposed on former Confederates. The act states, "All political disabilities imposed by the third section of the 14th Amendment to the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States."
Charlene McGowan, a Georgia assistant attorney general representing Raffensperger and Judge Beaudrot, argued that because ballots will soon be finalized and sent out for absentee voting, the case should be declared moot and Greene can raise her constitutional defenses before the Georgia Supreme Court.
An attorney for the voters disagreed, explaining to the court that "there is still a lot of controversy" due to the possibility that Greene could face another challenge in two years if she runs again.
"The Constitution doesn't require Georgia to have a wait-and-see approach," attorney Bryan Sells said in regards to Congress' ability to disqualify elected members.
He added, "If the court comes down on Greene's side, that the state doesn't have the power to determine qualifications, it undermines state's power to regulate ballot access across the board."
In the May Republican primary, Greene won about 70% of the vote, defeating five challenger who attempted to unseat her in Georgia's 14th Congressional District.
Greene is set to face Democrat Marcus Flowers in November’s general election.
However, if the appeals court doesn't rule in favor of her challenge to the state's law and the Georgia Supreme Court sides with the voters, Greene's name could either be struck from the ballots or voters will be notified that all votes cast for her will be voided.
The 11th Circuit judges did not signal when they intend to issue a ruling.
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