An Indiana Democratic challenger is seeking to use an obscure constitutional provision to disqualify Republican U.S. Rep. Jim Banks in this year’s congressional election, arguing that Banks’s vote in Congress against certifying the 2020 presidential election results constituted supporting an insurrection.
In a Facebook post before the votes, Banks had said he was simply doing his job as a member of Congress.
“Article II, Section 1, clause 2 of the U.S. Constitution clearly states that Presidential Electors must be appointed according to rules established by each state’s legislature,” Banks wrote. “But in the months before the 2020 election, these rules were thwarted in some states, not by their legislatures—but by governors, secretaries of state, election officials, judges and/or private parties.”
The relevant part of that constitutional provision states: “No person shall be a ... Representative in Congress ... 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.”
Aaron “A.J.” Calkins of Fort Wayne is part of a three-way Democratic Party primary for the right to face Banks in the November general election.
Calkins cited a “violation of the 14th Amendment supporting an insurrection,” in a challenge document he filed with the state on Feb. 10. The case, known as Calkins v. Banks, 2022-10, regarding the GOP nomination for U.S. representative for the 3rd Congressional District, is scheduled to be heard by the Indiana Election Commission on Feb. 18.
Calkins didn’t respond by press time to a request by The Epoch Times for comment.
Banks, an ally of former President Donald Trump, is chairman of the 158-member Republican Study Committee, the largest ideological caucus in the House. He told reporters that his eligibility is being challenged because he voted against certifying the Electoral College results for Arizona and Pennsylvania on Jan. 6, 2021, the day the U.S. Capitol was breached, a disturbance that delayed certification of then-candidate Joe Biden’s election victory by several hours.
The complaint filed by Calkins is “absurd,” Banks reportedly said.
“They’re challenging my eligibility based on a ridiculous charge that I violated the 14th Amendment and supported an insurrection because of my vote on Jan. 6 to object to how elections were conducted in the 2020 election,” Banks told the New York Post.
Banks, now in his third term in the U.S. House, isn’t the only incumbent Republican facing a legal challenge that cites the so-called disqualification clause, which is Section 3 of the 14th Amendment to the U.S. Constitution, a post-Civil War measure that, among other things, was aimed at keeping individuals who fought for the defeated Confederacy out of Congress. The 14th Amendment was ratified July 9, 1868, a little over three years after Confederate Gen. Robert E. Lee’s Army of Northern Virginia surrendered at Appomattox Court House.
While the North Carolina State Board of Elections isn’t currently preventing the first-term congressman from running again, it stated in a Feb. 7 filing with the U.S. District Court that it has the power to do so under Section 3 of the 14th Amendment.
“We’re seeing this play out with Madison Cawthorn in North Carolina,“ Banks said. ”It’s the same narrative—it’s the same ridiculous narrative that Democrats are pushing to bar President Trump’s eligibility to run for office again. And now, Democrats are attacking me and trying to take away not just my right to run for office, but the right of my voters to vote for their preferred choice to represent them in Congress.
“I mean, this is another sign of the Democrats weaponizing January 6 [2021] against political opponents or anyone who supported President Trump or the Trump agenda.
“Obviously, they’re targeting me because I’ve been a fighter for the Trump agenda. And also I’ve been fighting back against the Democrats’ sham efforts to attack any Republican or Trump supporter whether they were in Washington, D.C., on January 6 or not.”
An election law expert interviewed by The Epoch Times strongly criticized the use of the disqualification clause against Banks.
J. Christian Adams, president of the Indianapolis-based Public Interest Legal Foundation (PILF), said using the clause was “totally wrong constitutionally.”
Trying to disqualify Republicans for supporting Trump is a sign that some Democrats have “lost their minds,” he said. “Anything that touches on Trump turns them into crazed, maniacal animals, and this is no different.”
As the law currently stands, Banks had “absolute discretion” to vote as he wished on certifying election results. “It’s a political question,” he said, referring to a constitutional doctrine that prevents courts from weighing in on certain issues.
“If any member of Congress doesn’t like the absolute discretion, then they should change the Electoral Count Act,” he said, adding that some lawmakers are trying to do just that after Trump supporters cited the statute during the aftermath of the 2020 election.
“But as the law is written right now, they had absolute discretion.”
The disqualification clause was “meant for Confederate officers who actually took up arms against the United States, and what’s ironic is that the Radical Republicans showed more mercy and class after the Civil War toward ex-Confederate soldiers than these people are doing” now to Trump-supporting Republicans, Adams said.
“They welcomed them back into full citizenship. There were Confederates who eventually served in Congress.”
PILF describes itself as “the nation’s only public interest law firm dedicated wholly to election integrity.” The nonprofit organization “exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections.”
