A leading Democratic lawyer previews one of his party’s predictable strategies in the upcoming 2022 midterm election season. It unsurprisingly involves litigation as a tool when political appeal fails.
Marc Elias acted as general counsel for the losing presidential campaigns of John Kerry in 2004 and Hillary Clinton in 2016. He also worked as a partner at Perkins Coie. This powerful Democratic law firm was in the middle of the process that led to the bogus “Steele Memorandum” that led to the investigation of President Donald Trump and fake allegations of his connections to Russia.
Elias is now speculating that the Democratic Party might sponsor lawsuits to prevent some already elected Republican House members from continuing to serve. He wrote on Twitter on Monday that he expects a “serious discussion” about how Section 3 of the Fourteenth Amendment might apply to Republicans in Congress. He also predicted litigation on the issue.
The Fourteenth Amendment was enacted immediately after the Civil War as part of Reconstruction. Section 3 of the amendment was designed to prevent persons who acted as government officials for the Confederate States of America from serving as a member of the US Congress. The disability attaches to anyone who “engaged in insurrection or rebellion” against the US and can be removed by a two-thirds vote of Congress.
Elias implies that Republicans can be disqualified and removed from office based on the riot at the Capitol building on January 6. The basic theory of how sitting House members “engaged” in an “insurrection” is unclear, but that is not likely to stop Democrats from seeking out a friendly federal court somewhere to float a lawsuit to stir up fundraising and garner attention from a compliant corporate media.
Virtually all polling and popular expectations show that Republicans are expected to retake control of the House of Representatives in next year’s midterm elections. The current House has a razor-thin 221-213 Democratic margin. The party winning a presidential election has traditionally lost seats in the next midterm election. The recent approval numbers of Joe Biden, Kamala Harris, and other Democrats indicate that a Republican midterm “red wave” is likely.