Derrick Evans – a former member of the West Virginia House of Delegates who stormed the U.S. Capitol with other insurrectionists on January 6, 2021, resigned from office in disgrace after being charged with federal crimes, and later pled guilty to a felony – recently announced a campaign for Congress. But Evans, a convicted felon who remains on court-supervised release, is disqualified from holding public office under Section 3 of the 14th Amendment to the Constitution. Because Evans is constitutionally ineligible to serve, he should not be permitted to appear on the ballot for any future election, and the West Virginia Secretary of State should bar him from the ballot if and when Evans officially files a Certificate of Announcement.
Section 3 of the 14th Amendment disqualifies any person from serving as a “Representative in Congress” or in any other federal or state office if they took an “oath … to support the Constitution of the United States” as a “member of any State legislature” and then “engaged in insurrection … against” the Constitution — unless Congress “remove[s] such disability” by a two-thirds vote.
Evans, mere days after taking an oath to uphold the U.S. Constitution when he joined the House of Delegates, breached police barriers and stormed the Capitol building on January 6, live-streaming himself while shouting “Derrick Evans is in the Capitol!” He later resigned from office and pled guilty to a felony charge in which he admitted to breaching the Capitol building and disrupting the certification of the 2020 presidential election.
Last September, a state judge in New Mexico removed Cowboys for Trump co-founder and former county commissioner Couy Griffin from office based on his participation in the Capitol insurrection, which was the first court in the country to find that the January 6 attack was an “insurrection” under the 14th Amendment and the first court in more than 150 years to remove an official from office for participating in an insurrection. CREW and co-counsel represented three New Mexico residents in bringing this case against former Commissioner Griffin, which was supported by amicus briefs from the NAACP, Common Cause, religious leaders, leading First Amendment experts, and University of New Mexico law professors.
The Griffin decision reinforces the case for Evans’ disqualification under Section 3. Evans’ disqualification is especially clear since he breached the Capitol building (not just the restricted area) and admitted to the disqualifying facts in his guilty plea.
Section 3 of the 14th Amendment was adopted in the aftermath of the Civil War to prevent insurrectionists who violated their oath to defend the U.S. Constitution from holding positions in federal and state government. Evans violated his oath on January 6, 2021, resigned from state office, and pled guilty to a felony for his actions that day. Based on Evans’ admitted criminal conduct on or around January 6, 2021, and legal precedent from the Reconstruction period and the Couy Griffin case, Evans is constitutionally disqualified from holding public office, including from serving as a member of Congress. As a result, he should not be permitted to appear on the ballot for that office.
Evidence that Evans is Disqualified Under Section 3
Evans Took an Oath to Uphold the U.S. Constitution on December 1, 2020
Pursuant to Article VI, Section 16 of the West Virginia Constitution, Evans swore an oath to support the Constitution of the United States upon becoming a member of the West Virginia House of Delegates on December 1, 2020.
The January 6, 2021 Attack on the Capitol Was an “Insurrection”
Authorities from the period of the 14th Amendment’s adoption defined an “insurrection” as an assemblage of people acting through force, violence, or intimidation by numbers for the common purpose of preventing the federal government from carrying out a legally-mandated function. Case of Fries, 9 F. Cas. 924 (C.C.D. Pa. 1800) (Chase, J.); John Catron, Robert W. Wells & Samuel Treat, Charge to the Grand Jury By the Court, July 10, 1861 (St. Louis: Democratic Book and Job Office, 1861); “Insurrection,” Webster’s Dictionary (1828).
Applying this definition in Griffin, the New Mexico district court held that the January 6 attack on the Capitol and the surrounding planning, mobilization, and incitement constituted an “insurrection” within the meaning of the 14th Amendment. That is so because it was an assemblage of people acting through force, violence, and intimidation by numbers for the common purpose of preventing Congress from certifying the 2020 presidential election as mandated by the Constitution. State ex rel. White v. Griffin, 2022 WL 4295619, *17-*19 (N.M. Dist. Ct. Sept. 6, 2022). To date, the Griffin court is the only court to have considered whether the events of January 6 amounted to an “insurrection” under the Fourteenth Amendment.
Each branch of the federal government has referred to the January 6 attack as an “insurrection” and the participants as “insurrectionists.” See Griffin, 2022 WL 4295619, *19 (collecting congressional, presidential, and judicial statements).
Most recently, the final report of the bipartisan House Select Committee to Investigate the January 6 Attack on the U.S. Capitol referred former President Trump for prosecution under 18 U.S.C. § 2383 for “assisting and providing aid and comfort to an insurrection,” and stated the “Committee believes that those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office—whether federal or state, civilian or military—absent at least two-thirds of Congress acting to remove the disability pursuant to Section 3 of the Fourteenth Amendment.”
Evans “Engaged In” the January 6 Insurrection
Case law from the Reconstruction era holds that a person “engage[s]” in an insurrection within the meaning of the Fourteenth Amendment by “[v]oluntarily aiding the [insurrection], by personal service, or by contributions, other than charitable, of anything that [is] useful or necessary” to the insurrectionists’ cause. Worthy v. Barrett, 63 N.C. 199, 203 (1869); United States v. Powell, 27 F. Cas. 605, 607 (C.C.D.N.C. 1871); see also Griffin, 2022 WL 4295619, *19 (applying Worthy-Powell standard for “engagement”). Engagement can include non-violent overt acts or words in furtherance of the insurrection.
Applying this standard in Griffin, the court held that Couy Griffin “engaged in” the January 6 insurrection both by “helping to mobilize and incite thousands across the country to join the mob in Washington, D.C.” ahead of the attack, and then “join[ing] and incit[ing] the mob that attacked and seized the Capitol grounds on January 6.” While Griffin did not breach the Capitol building or engage in violence, he aided the insurrection because his presence in the mob contributed to law enforcement being overwhelmed and the congressional proceedings being delayed.
Evans’ conduct easily meets this standard. For his actions on January 6, Evans pled guilty in February 2022 to a felony charge of civil disorder in violation of 18 U.S.C. § 231(a)(3), and was sentenced in June 2022 to 3 months of imprisonment and 36 months of supervised release. As part of his plea agreement, Evans admitted to joining the mob, breaching the Capitol building, and obstructing law enforcement during a civil disorder. He further admitted that the civil disorder disrupted Congress’s certification of the 2020 presidential election.
Specifically, in his Statement of Offense, Evans agreed and stipulated that the United States could prove the following facts (among others) beyond a reasonable doubt:
- In the period between taking his oath of office on December 1, 2020 and January 6, 2021, Evans urged followers on social media to travel to D.C. on January 6 to “FIGHT FOR TRUMP.” He posted about charter buses headed to D.C. with “loads of Patriots from WV, KY, and Ohio” to “#StopTheSteal.” He promoted former President Trump’s false claims of voter fraud and stated: “This is why we are going to D.C. #StopTheSteal.”
- On January 6, 2021, a violent mob unlawfully seized the Capitol grounds and breached the Capitol building. The mob forced Congress to halt its election certification proceedings, which “could not resume until every unauthorized occupant had been removed from or left the Capitol.”
- Evans joined the mob in trespassing on the East Side of the Capitol where he spent “several hours,” “saw and video-recorded rioters overwhelm law enforcement and breach .. barriers,” and then “followed the crowd toward the Capitol building.”
- Evans joined the mob in violently breaching the Capitol’s East Rotunda Doors, forcing his way through police officers who were pepper spraying him.
- Evans live-streamed himself on Facebook immediately before and after the breach. Video shows Evans stating, among other things: “They’re pepper spraying” “The cops are running!” “Here we go! Open the doors!” “Our House!” Upon breaching the Capitol building, Evans exclaimed “We’re in! Derrick Evans is in the Capitol!” He entered the building at 2:40 p.m. and left at 2:50 p.m.
- Evans “committed or attempted to commit an act to obstruct, impede, or interfere with law enforcement officers while engaged in the lawful performance of their official duties incident to and during the commission of a civil disorder,” and “the civil disorder obstructed, delayed, or adversely affected the performance of a federally protected function.”
A Bipartisan Group of West Virginia Officials Condemned Evans’ Participation in the Insurrection and Called for His Resignation
In the aftermath of January 6, a bipartisan group of West Virginia leaders condemned Evans’ participation in the Capitol insurrection and called for his resignation, including Governor Jim Justice (R), state Senator Eric Nelson (R), Delegate Ben Queen (R), and state Senate Minority Leader Stephen Baldwin (D). Governor Justice called Evans’ actions a “scar on West Virginia.”
House of Delegates Minority Leader Doug Skaff Jr. (D) called for Evans’ suspension pending an investigation.
Evans agreed to his colleagues’ demands, resigning from the House of Delegates on January 9, 2021, the day after his arrest. Evans issued a statement expressing remorse for his conduct on January 6, stating: “I take full responsibility for my actions, and deeply regret any hurt, pain or embarrassment I may have caused my family, friends, constituents and fellow West Virginians. I hope this action I take today can remove any cloud of distraction from the state Legislature, so my colleagues can get to work in earnest building a brighter future for our state.”
The West Virginia Secretary of State Can Exclude Constitutionally-Disqualified Individuals from the Ballot
Section 3 of the 14th Amendment establishes a constitutional qualification for public office that secretaries of state and other election officials must assess in deciding whether an individual may appear on a ballot, in addition to the age, citizenship, and residency qualifications set forth elsewhere in the United States Constitution. See Griffin, 2022 WL 4295619, at *16 (recognizing that Section 3 establishes a qualification for office); U.S. Const. art. I, § 2, cl. 2 (House of Representatives qualifications clause); id. art. I, § 3, cl. 3 (Senate qualifications clause); id. art. II, § 1, cl. 5 (President qualifications clause).
Like all provisions of the U.S. Constitution, Section 3 is “the supreme Law of the Land,” U.S. Const. art VI, cl. 2; all federal and state officials are bound by it.
West Virginia law requires individuals seeking to run for Congress to file a Certificate of Announcement with the Secretary of State, in which the individual must “swear and affirm” in “good faith” that they are “eligible and qualified to hold this office.” The Secretary of State can reject a deficient Certificate of Announcement.
The West Virginia Secretary of State has issued guidance instructing candidates to ensure they meet all constitutional qualifications and “are not prohibited from running by …. the requirements set by the United States Constitution.” The guidance adds that the Secretary of State will “determine disputes regarding a candidate’s eligibility” in some circumstances.
This is an appropriate case for the Secretary of State to determine candidate eligibility. There is no factual dispute that requires investigation or judicial resolution – Evans pled guilty and admitted to the facts demonstrating his disqualification. Given the admissions in his felony guilty plea, Evans cannot “swear and affirm” in “good faith” in his Certificate of Announcement that he is “eligible and qualified” to serve in Congress.
Thus, if and when Evans files his Certificate of Announcement, the West Virginia Secretary of State should reject it and bar him from the ballot due to his constitutional ineligibility to serve in Congress.