The Larson Question: Can Just About Anyone, Convicted Felons Included, Really Run for Congress?

By Michelle Sisti

Nathan Larson has been making global headlines because of his bid for Congress in the tenth district of his home state, Virginia.[1] In fact, this is the second time Larson’s name has appeared on a congressional ballot in Virginia; Larson ran for a seat in the first district back in 2008.[2] He is a married thirty-seven-year-old accountant from Charlottesville, and he has a daughter from his first marriage.[3] So, why is Larson making headlines?

Larson describes his platform as “quasi-neoreactionary libertarian.”[4] In the hot debate about gun rights, he would like to protect ownership.[5] He would also like to stop the war on drugs, establish free trade, end US involvement in foreign wars arising from the United States’ alliance with Israel, protect “benevolent white supremacy,” and legalize incestuous marriage and child pornography.[6]

Larson’s penchant for writing is also causing a stir. He has penned highly controversial essays like “Here’s How to Psyche Yourself Up to Feel Entitled to Rape” and “Advantages of Father-Daughter Incest,” both of which he posted on his now-defunct websites suiped.org and incelocalypse.today.[7] He also shot off a quick email to the Secret Service in December 2008 that landed him with a sixteen-month federal prison sentence for threatening to kill the president.[8] Unlike his other horrific, but constitutionally-protected, free speech, threats against the president’s life are not protected speech—they are Class E felonies.[9]

For some Americans, Larson’s candidacy might seem mind-boggling, if not outright impossible. After all, is it even legal for a convicted felon to run for federal office? To answer that question, we need look no further than the same document that protects his outrageous rants and manifestos: The Constitution.

The eligibility requirements for Representatives to Congress are defined in the Qualification of Members of Congress clause.[10] “No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”[11] Simply put, a representative must be (1) at least twenty-five years old, (2) a U.S. citizen for at least seven years, and (3) live in the state in which one runs for office.[12]

Larson is thirty-seven, has been a U.S. citizen for at least seven years, and lives in Virginia, the state in which he is running for office.[13] Therefore, he satisfies the three qualifications to run for a seat in the House of Representatives. This list of qualifications is not partial, nor is it a framework of minimum qualifications. As the Supreme Court has affirmed, these constitutional qualifications are exclusive and, absent a constitutional amendment, cannot be added to or modified by a state or Congress.[14]

If you are thinking that there was something in the Constitution about states having power over some aspect of federal elections, you are right. The Constitution grants states the right to determine “[t]he Times, Places and Manner of holding Elections for Senators and Representatives. . . .”[15] This clause grants states the power to determine the procedural matters of voting for federal representatives, but not the power to determine the qualifications of such representatives.[16] Therefore, before former Virginia governor, Terry McAuliffe, restored voting rights for thousands of felons, Larson could have been a congressional candidate in a federal election in which he could not have legally voted, since states have the authority to determine who can vote, while the Constitution dictates who can run for a congressional seat.[17]

Larson ran for a seat in the Virginia House of Delegates, a state office, in 2017.[18] He would have been unable to run for this office prior to McAuliffe restoring voting rights for felons in 2016 because Virginia barred convicted felons from running for state office.[19] While the U.S. Constitution dictates the qualifications of federal representatives, candidacy qualifications for a state office fall under the purview of the state government.

Larson’s candidacy raises not just morality concerns, but legal questions like whether there should there be a constitutional amendment to change or supplement the qualifications for a federal representative. The answer to that question may come down to your style of constitutional interpretation. If you think that the Constitution should be interpreted by its plain meaning, or as intended by the framers in 1787 at the time of drafting, then you may be averse to amending the Constitution. However, if you are someone who thinks the Constitution should have a dynamic and evolving interpretation, then you may be more open to an amendment.

The answer could also come down to your social justice beliefs and motivation to correct institutionalized racism. If the qualifications for candidacy were altered based on something like criminal record, that would likely have a disproportionate effect on historically disenfranchised populations, particularly African Americans.[20] Nationwide, one in thirteen voting-age African Americans are disenfranchised.[21] Prior to McAuliffe’s restoration of voting rights, one in five voting-age African Americans in Virginia were disenfranchised.[22] In fact, McAuliffe’s primary motivation behind restoring voting rights was to remedy the state’s “long and sad history” of suppressing voting in the African-American community.[23] Therefore, basing federal candidacy qualifications on a broken justice system would only further institutionalize racism.

However, what if Larson is voted into office and he incites the same criminal conduct that he promotes online, like pedophilia, incest, or violence against women?[24] Who could be harmed? Who could be held liable? Should the prospect of this situation worry you, you’re not alone, and perhaps these are policy questions that will be addressed after further consideration. Unfortunately, if there is anything you learn reading hundreds of judicial opinions in law school, it is that law is reactive—not proactive.

[1] See Jesselyn Cook & Andy Campbell, Congressional Candidate in Virginia Admits He’s a Pedophile, HuffPost News paras. 1, 12 (May 31, 2018), https://www.huffingtonpost.com/entry/nathan-larson-congressional-candidate-pedophile_us_5b10916de4b0d5e89e1e4824.

[2] See id. at para. 18.

[3] See id. at paras. 1, 12.

[4] Id. at para. 7.

[5] Id.

[6] See id. at paras. 7-8 (quoting Larson as calling Adolph Hitler a “white supremacist hero”); William Cummings, Nathan Larson is a Pedophile and a White Supremacist. And He’s Running for Congress, USA Today para. 2 (June 2, 2018), https://eu.usatoday.com/story/news/politics/2018/06/01/pedophile-white-supremacist-congressional-candidate/663215002/.

[7] See Cook & Campbell, supra note 1, at 1, 6, 8-11, 13-14, 16, 20. Larson’s websites serve as safe spaces for other self-proclaimed violent misogynists like himself to advocate for pedophiles’ rights to suicide and a violent overthrow of alpha males by involuntarily celibate males, respectively. He also urged Congress to repeal the Violence Against Women Act, and believes that “[w]e need to switch to a system that classifies women as property, initially of their fathers and later of their husbands.”

[8] See Boulder Man Sentenced in Presidential Threat, Denver Post (Oct. 9, 2009), https://www.denverpost.com/ 2009/10/09/boulder-man-sentenced-in-presidential-threat/. Larson’s email read, “I am writing to inform you that in the near future, I will kill the President of the United States of America.” However, the email did not specify whether his threat was directed at sitting president George W. Bush or president-elect Barack Obama.

[9] See 18 U.S.C. § 871 (2018) (“Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery . . . any writing . . . containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States . . . shall be fined under this title or imprisoned not more than five years, or both.”). See also 18 U.S.C. § 3559 (2018).

[10] U.S. Const. art. I, § 2, cl. 2.

[11] Id.

[12] Id.

[13] See Cook & Campbell, supra note 1.

[14] Cook v. Gralike, 531 U.S. 510 (2001); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-01 (1995); Powell v. McCormack, 395 U.S. 486, 522 (1969).

[15] U.S. Const. art. I, § 4, cl. 1.

[16] See id.

[17] See Jack Maskell, Cong. Research Serv., R41946, Qualifications of Members of Congress 24 (2015).

[18] Nathan Larson, Ballotpedia para. 8 (last accessed June 11, 2018), https://ballotpedia.org/Nathan_Larson (indicating that Larson captured 1.68% of the vote).

[19] Va. Const. art. 2, § 1 (barring a person convicted of a felony from voting unless his civil rights have been restored by the governor or other appropriate authority); Va. Code Ann. § 24.2-500 (2014) (instructing that, to qualify as a state candidate, a person must be qualified to vote for and hold that office). See generally Laura Vozzella, McAuliffe Restores Voting Rights to 13,000 Felons, Wash. Post (Aug. 22, 2016), https://www.washingtonpost.com/local/virginia-politics/mcauliffe-restores-voting-rights-to-13000-felons/2016/08/22/2372bb72-6878-11e6-99bf-f0cf3a6449a6_story.html?utm_term=.e2ee71d5880c.

[20] Christopher Uggen et al., Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 201615-16 (2016), http://www.sentencingproject.org/wp-content/uploads/2016/ 10/6-Million-Lost-Voters.pdf.

[21] See id. The national disenfranchisement rate for people who are not African American is one in fifty-six.

[22] See id. In 2016, the total voting age population in Virginia was over 6.5 million people, and 7.8% of the voting age population was disenfranchised (508,680 people). While African Americans represented only 19.1% of Virginia’s total voting age population (over 1.2 million people), they represented 53.5% (271,944 people) of the total disenfranchised population.

[23] See Graham Moomaw, McAuliffe Restores Voting Rights for 206k Ex-Felons; GOP Calls it Move to Boost Clinton, Richmond Times-Dispatch para.1 (Apr. 22, 2016), http://www.richmond.com/news/virginia/government-politics/mcauliffe-restores-voting-rights-for-k-ex-felons-gop-calls/article_771db279-34d6-5a3d-9557-a417a8afb212.html.

[24] See Cook & Campbell, supra note 1; supra text accompanying note 7. See generally U.S. Const. art. I, § 5, cl. 2 (allowing for members of either house to be expelled from membership as a disciplinary measure upon a two-thirds vote of present and voting members).