The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections

By David B. Froomkin & Eric Eisner.

The Fourteenth Amendment is a gift that keeps on giving. In the aftermath of the January 6, 2021 attack on the U.S. Capitol, scholars were quick to observe that Section 3 of the Fourteenth Amendment offered potential remedies for a nation seeking to bar access to federal power to those who had sought to overthrow the federal government. Litigants have achieved some success in invoking Section 3 to challenge the eligibility of aspirants to office. Section 2 of the Fourteenth Amendment also has new and powerful relevance in an era of presidential election subversion. Indeed, Section 2, we will argue, imposes stiff penalties on states that deny their citizens the right to participate in elections for President. Full Article