A New Mexico official who joined the Capitol attacks is barred from politics – but the little-known law behind the removal has some potential pitfalls for democracy

A county court in Santa Fe, New Mexico, on Sept. 6, 2022, became the first in more than 150 years to disqualify a person from public office because they participated in an insurrection.

District Court Judge Francis Mathew found that Couy Griffin, a former county commissioner and founder of the group Cowboys for Trump, had participated in the violent U.S. Capitol attack on Jan. 6, 2021. Mathew invoked a nearly forgotten part of the 14th Amendment, called Section 3, which can disqualify certain people from state or federal office if they have “engaged in insurrection or rebellion” or given “aid or comfort” to the United States’ enemies.

The clause was first adopted after the Civil War to keep former Confederates from participating in politics. The amendment says that disqualified people are barred for life from either running for or being appointed to office. But Congress can vote by a two-thirds majority to waive this ban.

The clause fell into general disuse after 1872, when Congress gave amnesty to most former Confederates in a move toward reconciliation.

Some observers have argued that Section 3 disqualification should be dusted off to address the Jan. 6 mob and to stop other people who have threatened and committed violence – or tried to disrupt federal elections – from serving in government.

Mathew’s decision has also renewed talk among Democrats and good-governance groups about finding a way to use Section 3 against former President Donald Trump in order to disqualify him from ever holding office again.

We are scholars of comparative constitutional law who have worked on democratic backsliding around the world. In a forthcoming article, we point out that disqualification is potentially a useful tool to protect democracy, but it can also be dangerous – it rubs up against the basic idea of democracy as a system in which anyone can run, and voters can decide.