Representative Marjorie Taylor Greene will have to defend herself from disqualification on the basis of the Fourteenth Amendment if she is to remain on the ballot in next month’s Republican primary. 

That stark reality snapped into focus on Tuesday after a federal district court judge, Amy Totenberg, refused to grant Ms. Greene’s request for a temporary restraining order and an injunction that would have frozen the challenge in its tracks. Now, she has an April 22 hearing before an administrative law judge that will determine her electoral fate. 

The legal effort to bar Ms. Greene from office is based on the Fourteenth Amendment’s Disqualification Clause, a post-Civil War measure that barred ex-Confederates from holding office because they had committed “insurrection” against America. In Ms. Greene’s case, the question is whether she engaged in insurrection by her actions relating to the January 6 Capitol Hill protests.

In handing a victory to Free Speech for People, the organization spearheading the disqualification push, Judge Totenberg reinvigorated a broad-based effort to block Republicans from the ballots, a campaign whose targets, the Sun has reported, now have swelled to include the Republican primary frontrunner for Pennsylvania governor. 

That effort had stalled, with a judge in North Carolina blocking a similar challenge against Representative Madison Cawthorn. In deciding differently, Judge Totenberg rejected Ms. Greene’s argument that “the specific process she must go through to establish her qualifications imposes a severe burden on her First and Fourteenth Amendment rights.”

Instead, the judge asserted that Ms. Greene’s “interest in appearing on the ballot does not rise to the level of a fundamental right” and thus is not constitutionally protected from challenge. In other words, her burden at “simply having to go through the challenge process itself” does not outweigh the First Amendment right that Georgia voters have to challenge her candidacy. 

In the more northern of the two Carolinas, a district court judge, Richard Myers II, was persuaded by Mr. Cawthorn’s argument that the Amnesty Act, passed four years after the Disqualification Clause, not only removed disabilities imposed by the earlier law but also neutralized all future disqualifications due to insurrection. 

Judge Totenberg was decidedly not swayed by that line of argument, writing that “the text of the statute contains no language suggesting that it applies prospectively” and that it “utilizes only the past tense.” She goes further in holding that “it strains credulity” to argue that Congress can “remove something that does not yet exist.”

Leaning on both a reading of the relevant statutes and what she calls “pure common sense,” Judge Totenberg held that “the 1872 Act does not provide amnesty prospectively.” Ms. Greene thus does not enjoy the judicially recognized shield that currently protects Mr. Cawthorn.

Judge Totenberg also rejected Ms. Greene’s argument that determining whether a candidate may run for Congress is a matter for the House of Representatives, not the individual states. At issue is the relationship between two sections of Article I of the Constitution. Section 5 empowers each house of Congress to be “the Judge of the Elections, Returns and Qualifications of its own Members.”

Article 4, however, grants to the states the ability to determine the “Times, Places, and Manner” of elections. Judge Totenberg reads this latter grant of authority expansively and believes that “states have the power to exclude from the ballot constitutionally unqualified or ineligible candidates.” Thus, states have the ability to enforce the Disqualification Clause against candidates for federal office like Ms. Green. 

Judge Totenberg notes that Ms. Greene’s name is already printed on ballots for the May 24 Republican primary in the Peachtree State, and points out that the only question “is whether the votes cast for her on those ballots will ultimately be counted.” Her decision in a case she described as “a whirlpool of colliding constitutional interests of public import” means that question is now very much in doubt.  

Correction: Amy Totenberg is the name of the judge who refused to grant Ms. Greene’s request for a temporary restraining order. An incorrect first name was included in an earlier version of this report.