Challenge 1: Ratification Under Military Occupation
After the War Between the States, the former Confederate states, except Tennessee, were placed under military Rule by the Reconstruction Acts of 1867. The Acts divided those states into military districts, dissolved their civil governments, and placed them under the command of Union Generals.
Congress made ratification of the Fourteenth Amendment a condition for those states to be readmitted to representation in Congress. The Argument is that ratification extracted under military occupation, and as the price of political readmission, is not a voluntary act of a Sovereign State Legislature. A State ratifying under military direction, to regain its seats in Congress, cannot be said to have freely consented. On this view, the ratifications coming out of the Reconstruction governments are void.
Challenge 2: Rescinded Ratifications Were Ignored
Ohio ratified the Amendment on January 11, 1867, then rescinded its ratification on January 15, 1868. New Jersey ratified on September 11, 1866, then rescinded on March 5, 1868.
The argument is that once a state rescinds its ratification before the Amendment is fully ratified, that rescission must be honored. The final count treated Ohio and New Jersey as ratifying states and set aside the rescissions, which researchers argue was irregular.
Challenge 3: Secretary Seward's Expressed Doubt
On July 20, 1868, Secretary of State William H. Seward issued a proclamation noting that Ohio and New Jersey had rescinded, and stating that, if those rescissions were valid, the Amendment had not been ratified by the requisite number of states.
A subsequent proclamation of July 28, 1868, issued after Congressional intervention, declared the Amendment ratified. The argument is that the first proclamation itself acknowledged the irregularity, and the second reversed course without resolving the rescission question.
Challenge 4: States That Initially Rejected
Alabama, North Carolina, Georgia, South Carolina, Virginia, Mississippi, and Texas initially rejected the Amendment. Under the new Reconstruction governments, installed by military authority and federal directive after the original rejections, those states then ratified.
The argument is that the ratifications came from governments installed by military power, not from the legislatures that originally rejected, and therefore do not represent the consent of those states.