The Volokh Conspiracy

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Fourth Circuit Opinion on the Madison Cawthorn Disqualification Litigation


From Cawthorn v. Amalfi, decided today by the Fourth Circuit (Judge Toby Heytens, joined by Judge James Wynn):

{In January 2022, shortly after the North Carolina state legislature redrew its congressional districts, a group of voters in Representative Madison Cawthorn's district filed such a challenge. According to the voters, Representative Cawthorn encouraged the violent mob that disrupted the peaceful transition of power by invading the United States Capitol on January 6, 2021, and that encouragement constituted "insurrection" and disqualifies Representative Cawthorn for further service in Congress.

Seeking to stop the challenge process from going forward, Representative Cawthorn sued the members of the state board of elections in federal district court. The complaint raises four discrete theories for enjoining the state administrative proceeding, specifically that it: (1) impermissibly burdens Representative Cawthorn's First Amendment right to run for political office; (2) places the burden of proof on Representative Cawthorn in violation of the Due Process Clause; (3) usurps Congress's power under Article I, Section 5 of the Constitution to be "the Judge of the … Qualifications of its own Members"; and (4) violates the 1872 Amnesty Act.}

In 1868—three years after the end of "the late wicked Rebellion"—the Constitution was amended to disqualify from future federal or state office certain public officials "who … shall have engaged in insurrection or rebellion against" the United States "or given aid and comfort to the enemies thereof." Four years later, Congress exercised its constitutional authority to "remove such disabilit[ies]" by enacting legislation lifting the "political disabilities imposed by" Section 3 of the Fourteenth Amendment "from all persons whomsoever" with the exception of certain high-ranking federal officers who had joined the Confederacy.

The issue currently before us is whether that same 1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct. To ask such a question is nearly to answer it. Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment. Accordingly, we reverse the district court's grant of injunctive relief and remand for further proceedings [including potentially dealing with Rep. Cawthorn's other objections -EV].

{Representative Cawthorn suggests that this case is moot because unofficial reports from the May 17 primary suggest he will not be the nominee for his party this year. Nevertheless, based on the record before us, this appeal is not currently moot in an Article III sense because a primary winner has not yet been certified and it does not appear the challengers have withdrawn their challenge. And to the extent future developments may bear on any mootness inquiry—including whether a controversy is reasonably likely to recur—we are ill-suited to assess such matters on the current record. See, e.g., North Carolina Right to Life Comm. Fund for Ind. Pol. Expenditures v. Leake (4th Cir. 2008) (appeal involving election regulations is not moot when "there is a reasonable expectation that the challenged provisions will be applied against the plaintiffs again during future election cycles"). Because the district court is better suited to apply this fact-intensive test, we leave any questions about whether the primary results will ultimately moot this case to that court in the first instance.} …

The court did not reach the question whether "allowing the North Carolina board of elections to determine whether he is disqualified from office under Section 3 of the Fourteenth Amendment would unconstitutionally trench upon a power that has been textually committed to the House of Representatives—namely, its authority to 'be the Judge of the … Qualifications of its own Members' under Article I, Section 5."

Judge Julius Richardson concurred in the judgment, but didn't join the majority opinion:

[I]n my view, the error was not in the court's resolution of the merits of the injunction, but with its jurisdiction to proceed on the statutory claim at all…. [U]nder Article I, section 5, clause 1 of the Constitution, the House "shall be the Judge of the Elections, Returns and Qualifications of its own Members." The House of Representatives here is not just a judge, it "is the sole judge of the qualifications of its members."

To reach that conclusion, I work through four premises. I start by explaining that Art. I, § 5, cl. 1 of the Constitution is a jurisdictional bar on a federal court's power to determine the qualifications of a member of Congress. Then I explain how, under Supreme Court precedent, there is no meaningful distinction between judging a member's qualifications and pre-judging a candidate's qualifications. Next, I show why Section 3 of the Fourteenth Amendment is one of the "Qualifications" of membership in the House of Representatives, under the meaning of Art. I, § 5, cl. 1. Those premises together show that courts have no jurisdiction to "judge" a candidate's qualifications under § 3. From there, I conclude by showing why the district court's interpretation of the 1872 Amnesty Act as applied to Representative Cawthorn amounts to a judging of his § 3 qualification. Taken together, these premises prove that the district court had no jurisdiction to proceed on Representative Cawthorn's claim under the 1872 Amnesty Act. While I respect the district court's hesitation to decide core constitutional questions and rely on a statutory ground, that choice was unavailable because the Constitution leaves this question—how the 1872 Amnesty Act applies to Representative Cawthorn's qualifications for office—to the House of Representatives alone….

The challengers have raised a pragmatic argument against the House's sole power to judge its members' qualifications. The argument is best summarized with a borrowed hypothetical: "What of the 'obviously' unqualified candidate? What if someone sought to put a pet dog on the ballot—or a corporation?" Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 598 (2015). The challengers argue that it makes no sense to leave this question to Congress because that would lead to chaos. I doubt their prediction. North Carolina, for instance, has measures in place that prohibit unaffiliated candidates from getting on the ballot without a petition bearing signatures representing 1.5% of the registered voters in the state. That example shows why the sky-is-falling argument is unpersuasive here, but it also exemplifies the states' proper role in federal elections. Laws that require an initial showing to weed out frivolous or unsupported candidates are laws that properly deal with the "Manner" of elections—with procedure and not substance. That would be a way to ensure that elections were limited to "major struggles," without allowing a state or the courts to unjustifiably judge the substance of a candidacy….

Judge Wynn joined the majority, but wrote a concurrence to respond to Judge Richardson's concurrence:

[T]he concurrence broadly creates a flawed blueprint for courts to stonewall the reasonable efforts of States to prevent frivolous candidates from running for congressional office. Neither the Constitution, nor Supreme Court precedent, nor common sense supports that irrational result….

The concurrence proposes to interpret Article I, Section 5 to determine whether federal courts have jurisdiction to judge a candidate's constitutional qualifications. But though the concurring opinion claims that it is not deciding whether the State of North Carolina may judge a candidate's constitutional qualifications—since that issue, we all agree, "is not before this court yet"—the opinion is littered with broad statements that apply its reasoning with full force to the States, see id. at 54 ("[O]nly Congress—not the states, and not the courts—may judge the qualifications of members or would-be members[.]" (emphasis added)). Indeed, the concurring opinion concludes that "any attempt" by the States "to regulate candidates or ballot access for federal office" in a substantive manner "is an implicit attempt to regulate the qualifications of members of Congress, which is not allowed."

In other words, the concurrence believes that every State in the Union is completely powerless to regulate candidates or ballot access. No court has ever held that view. Nor has any court ever held that Article I, Section 5 prevents States from enacting eminently reasonable measures to prevent twelve-year-olds or noncitizens, for example, from running for congressional office. Yet that is precisely what the concurring opinion—as well as counsel for Representative Cawthorn—argues the Constitution requires….