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Cawthorn Court Battle Lives On Even After His Candidacy Crashes

May 27, 2022, 9:02 AM

A federal appeals court rejected a lower court’s finding that a Civil War-era law protects Rep. Madison Cawthorn (R) and other politicians accused of insurrection, but deliberately kept alive the question of whether the 14th Amendment bars anyone who commits insurrection from seeking public office.

Still, the Fourth Circuit didn’t give North Carolina the right to keep politicians accused of insurrection from seeking federal office and likely never will, attorneys and Constitutional scholars said. That issue rests exclusively with Congress, they said, and this week’s ruling won’t change that.

“There’s certainly a strong pragmatic argument that in extreme cases (such as a child running for office) the state .... should not be forced to go through the motions of an election, but there is nothing in the Constitution that would allow them to stop a candidate,” said Michael T. Morley, the Sheila M. McDevitt Professor at Florida State University.

U.S. District Judge Richard Myers, appointed by President Donald Trump, issued an injunction earlier this year blocking the North Carolina election board from investigating voters’ claims that Cawthorn’s actions around the Jan. 6, 2021, riot at the U.S. Capitol amounted to insurrection.

Myers ruled that the 1872 Amnesty Act, passed to allow Confederate politicians who fought against the Union in the Civil War to serve again, also granted amnesty from insurrectionist acts to future politicians, including Cawthorn.

Because he ruled Cawthorn had amnesty, there was no need to address broader issues, Myers wrote.

The appeals court reversed his decision and sent the case back for Myers to decide whether states can enforce Article 3 of the 14th Amendment, while sidestepping that crucial question itself. The judges also reversed Myers’ refusal to let voters and attorneys for their group, Free Speech for People, to join the case.

Greene Case

Although Cawthorn lost his primary bid earlier this month, the case isn’t considered moot until the voting tally is official. A federal judge in Atlanta allowed a similar voter challenge to Rep. Marjorie Taylor Greene (R) to proceed. An administrative judge and Georgia Secretary of State Brad Raffensperger then ruled that she didn’t engage in insurrection and is free to run.

She handily won her Republican primary on Tuesday.

“The (Cawthorn) ruling wasn’t that broad. It proves that the 1872 Amnesty Act is not a barrier, and that’s all it does,” said Professor Derek Muller, the Bouma Fellow in Law at University of Iowa College, who filed an amicus brief in the case not aligned with either party. “There are other barriers, mainly that states don’t have the power to disqualify someone from federal office.”

The North Carolina Board of State Elections chose not to appeal Myers’ ruling because it left untouched state provisions that allow the election boards to decide if candidates are qualified for the ballot. Still, a concurring opinion leaves the North Carolina election law in doubt, at least when it comes to candidates for federal office, attorneys said.

Appeals Court Judge Julius Richardson, appointed by President Trump, wrote that the power to determine whether someone is qualified for federal office rests solely with Congress, and that states and even courts can’t get involved.

Barriers such as signature requirements should be enough to keep unqualified people from running, Richardson wrote. But even if a dog somehow got enough signatures and then the most votes, only Congress could turn it away.

“In layman’s terms, the political-question doctrine says that when the Constitution gives exclusive power over an issue to another branch of government, courts are deprived of their jurisdiction to decide that issue,” Richardson wrote.

‘Poor Interpretation’

Morley, of Florida State, said that he is not surprised the court reversed Myers’ “poor interpretation” that the Amnesty Act protects current office holders. But he added that doesn’t open the door for states to block candidates.

“I think if you look at the text of the Constitution that is an issue for Congress,” Morley said. “If the states try to set the requirements for office, that is it’s completely preventing that chamber of Congress, in this case the House, from doing its job.

Muller filed an amicus brief to the appeals court, not aligning himself with either party, in which he made similar arguments.

“This ruling doesn’t change that, and if you read the ruling in which Judge Richardson concurred and said states shouldn’t interfere in federal elections at all,” he said Thursday.

The case is Cawthorn v. Amalfi, 4th Cir., No. 22-1251, 5/24/22.

To contact the reporter on this story: John Holland at jholland1@bloombergindustry.com

To contact the editor responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com