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Quo Warranto Processes: States and Territories Survey

As we wrote in our report, The Constitution’s Disqualification Clause Can Be Enforced Today, there are currently legal mechanisms in place to enforce the 14th Amendment’s disqualification clause at both the state and federal level.

One of those is the statutory or common law process of quo warranto, a legal action that challenges the right of an official to hold office and allows a court to remove an unauthorized officeholder. This process originally derives from English common law and has been codified in the majority of states in the United States. In some states where the process has not been codified, it is still governed by common law.

Although the federal statute regarding quo warranto suits only applies in the District of Columbia, many states and other jurisdictions have authorized these lawsuits as a tool to hold public officials accountable in cases of forfeiture, usurpation, or other misdeeds.

Quo warranto processes have already been used to invoke the 14th Amendment’s disqualification clause and stop participants in the January 6, 2021, insurrection from holding office. Last year, a New Mexico court disqualified county commissioner Couy Griffin in a state-law quo warranto lawsuit brought by New Mexico residents.

We have created a chart, below, to provide a resource for the public to better understand what one process for holding officials accountable for the January 6 insurrection could look like in states and territories across the country. This survey does not include other mechanisms for accountability, such as the process to challenge an individual’s qualification to appear on a ballot for elected office.

Instead, it provides granular information for those exploring quo warranto challenges in their districts. The chart analyzes quo warranto procedures in 55 jurisdictions: all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. It also looks at how the mechanism can work nationally, including some limited instances of federal common law.

A Note on Definitions

Due to the diversity of state and territorial laws, creating standard categories requires some interpretation. This chart is designed to help users identify who is empowered to file a quo warranto action in their jurisdiction, so it attempts to categorize laws based on their substantive effect.

Column 4, “Role of Relators,” tracks provisions that empower private parties to provide information that instigates an enforcement action by the government. In some states, these relators have additional privileges, up to managing a case under the supervision of the government.

Column 5, “Private Action,” tracks provisions that allow private parties to bring and manage cases largely on their own. In some states, they may do so in their own name; in others, the state is named as the party even though the government has no control over the management of the case. This latter category is still described here as a private action, because the effect is to give a private person the ability to bring a quo warranto action.

This is the first edition of this resource. We welcome feedback on our categorizations as well as on any missing or incorrect information. Please send comments to David Janovsky ([email protected]).

Table: Survey of U.S. Quo Warranto Laws

A special thank you to POGO’s student attorneys from the Georgetown Federal Legislative Clinic, Patrick Reilly and Kyle Tillotson, for their work on this chart.