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Insurrectionists May Be Barred From Office, Court Rules (2)

May 25, 2022, 1:07 AM

Candidates who take part in an insurrection may be barred from holding public office under the 14th Amendment of the US Constitution, a federal appeals court ruled, overturning a lower court judge’s decision.

The US 4th Circuit Court of Appeals issued the ruling Tuesday in a challenge to former North Carolina Representative Madison Cawthorn’s candidacy for the House of Representatives. Cawthorn lost his bid for a second term in the Republican primary race last week despite being backed by former President Donald Trump.

Read More: Trump Backing Fails to Help Madison Cawthorn Keep US House Seat

While the ruling is legally binding only in the states that make up the 4th Circuit -- Maryland, Virginia, West Virginia, North Carolina, and South Carolina -- it could influence the outcome of legal challenges to multiple Republican House candidates tagged by critics for participating in events surrounding the Jan. 6, 2021, attack on the Capitol.

One is Marjorie Taylor Greene of Georgia, who this month was cleared to run for re-election when a state judge concluded voters seeking to keep her off the ballot didn’t prove Greene supported an insurrection. The advocacy group that led the court challenge vowed to appeal in state court.

Representatives Paul Gosar and Andy Biggs, both of Arizona, faced similar lawsuits seeking to block their re-elections. The state’s high court this month upheld a judge’s ruling dismissing the complaints.

Circuit Judge Toby Heytens, nominated by President Joe Biden last year, framed the issue in Cawthorn’s case as whether legislation from 1872 lifted a “constitutional disqualification for all future rebels or insurrectionists, no matter their conduct.”

“To ask such a question is nearly to answer it,” Heytens wrote in Tuesday’s ruling. The 19th century law shielding candidates from the eligibility bar only applies to acts that occurred before it was enacted, he said.

The opinion from the Richmond, Virginia-based appeals court sends the case back to lower court in Raleigh, North Carolina, to be reconsidered.

Two other judges on the panel wrote concurring opinions: Julius N. Richardson, appointed by Trump, and James Wynn, appointed by Barack Obama.

The lower-court judge, Richard E. Myers II in Wilmington, North Carolina, was appointed by Trump. He ruled that the 1872 law designed to let Confederate insurrectionists run for Congress also applied to Cawthorn and any other official seeking federal office today.

James Bopp Jr., a lawyer for Cawthorn, didn’t respond to email and phone messages seeking a response to the ruling.

Cawthorn had argued the appeals case didn’t need to be decided, according to the opinion, because he had already lost a May 17 primary. The appeals court disagreed, because a winner hasn’t been certified and the lawsuit hadn’t been withdrawn.

Under the law in North Carolina law, a voter registered in the same district can challenge a politician’s candidacy on grounds he or she doesn’t meet required qualifications for office, according to the appeals court decision.

Voters in Cawthorn’s district filed such a challenge because he “encouraged the violent mob that disrupted the peaceful transition of power by invading the United States Capitol on January 6, 2021,” according to the opinion. “That encouragement constituted ‘insurrection’ and disqualifies Representative Cawthorn for further service in Congress,” according to the challenge.

In response, Cawthorn, aiming to stop the challenge, sued members of the state board of elections in federal court.

(Updates with request for response from Cawthorn’s lawyer)

To contact the reporter on this story:
Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net

To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net

Joe Schneider, Peter Blumberg

© 2022 Bloomberg L.P. All rights reserved. Used with permission.