Insurrectionists May Be Barred From Office, 4th Circ. Says

Lawmakers who participated in the 2021 siege of the U.S. Capitol may be ineligible for reelection under the Fourteenth Amendment's bar on rebels holding office, the Fourth Circuit said Tuesday in the latest blow to controversial North Carolina Rep. Madison Cawthorn, who recently lost his primary to a challenger.

The appellate judges were careful to clarify that they had "no opinion about whether Representative Cawthorn in fact engaged in insurrection or rebellion or is otherwise qualified to serve in Congress," and also hadn't considered whether states could regulate who could be on the ballot. They only took on the narrow basis of the appeal — whether a 150-year-old law allowing Civil War secessionists to run for office applied in the present day.

The case stems from an effort by several voters in Cawthorn's district to challenge his candidacy by alleging that the Republican congressman was no longer qualified to hold office because of his involvement in the Capitol riot on Jan. 6, 2021.

Many rioters had attended then-President Donald Trump's "Stop the Steal" rally earlier in the day, where Cawthorn fired up the crowd with unsubstantiated claims of election fraud. That, his constituents told North Carolina's election board, rendered him ineligible for office thanks to the Fourteenth Amendment's bar on candidates who "have engaged in insurrection or rebellion."

In an attempt to head off the challenge, Cawthorn sued election officials in federal court. He sought an injunction on an upcoming administrative hearing, arguing the proceeding would violate his First Amendment right to run for office, his due process protections, Congress' discretion to police the qualifications of its members, and a Reconstruction Era law that allowed former Confederates to run for office.

That law, the 1872 Amnesty Act — which lifted the constitutional ban for most former members of the Confederacy only four years after the Fourteenth Amendment passed — was the basis on which a lower court judge granted Cawthorn's injunction bid in March.

And so at the heart of the appeal was whether the Amnesty Act also applied to future insurrectionists, U.S. Circuit Judge Toby Heytens said in Tuesday's order, adding that, "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," he wrote.

Tuesday's decision marked another loss for the first-term congressman. Last week, early numbers indicated he had lost his primary reelection contest to a challenger. During his two-year term, he has also faced allegations of sexual assault, been in hot water with the Republican establishment over his claims his colleagues invited him to orgies and used cocaine, and tried to explain away a sexually explicit video that surfaced online.

Cawthorn had attempted to abandon the case, arguing it was moot due to his apparent election loss. But Judge Heytens said the appeal was still live because the primary winner, Chuck Edwards, had not yet been certified. Now, it's up to the district court to decide if the case is moot.

The appeal emerged from a thick "procedural underbrush," Judge Heytens said.

The challenge to Cawthorn's candidacy was complicated by a dispute over North Carolina's newly redrawn congressional district, but once the maps were drawn again, a new group of voters filed an identical challenge to his qualifications.

Both groups of voters tried to join Cawthorn's lawsuit, and were denied by U.S. District Judge Richard E. Myers II. But the circuit court eventually let the appeal proceed, finding Judge Myers had abused his discretion in not allowing the voters to intervene, and that they had a "personal stake" in the outcome of the case, which the defendants — the elections board members — opted not to pursue further.

The appellate court also faulted the lower court judge for finding Cawthorn had standing to sue thanks to his First Amendment claim, but granted his injunction based on the Amnesty Act. But the judges ultimately found that Cawthorn had standing to sue regardless.

And Judge Heytens found that determining the scope of the Amnesty Act was within the court's purview in spite of its political implications, because the court was not determining whether to "disqualify Representative Cawthorn from future federal or state service," or whether he was qualified to run for reelection.

"Instead," Judge Heytens wrote, "the question before us is: Regardless of whether Section 3 would otherwise disqualify Representative Cawthorn, does the 1872 Amnesty Act nevertheless authorize him to serve?"

He found that it did not, basing his analysis on the intricacies of grammar in the Amnesty Act.

He noted the law's language lifted "political disabilities imposed" by the Fourteenth Amendment, and that the use of the past tense in the word "imposed" "refers to things that have already happened, not those yet to come." The congressman, they noted, hadn't argued "that this elementary rule of conjugation has changed in the last hundred and fifty years," and "ventures no direct rebuttal to this straightforward principle of grammar."

Cawthorn had argued that "imposed" functioned as a participle in that sentence, but Judge Heytens broke out his Webster's Dictionary, noting participles still come "in both 'past' and 'present' varieties." He also pointed out that the law's use of the word "removed" implied that it was "taking away something that already exists rather than forestalling something yet to come."

Nor did the legislation's historical context support the lower court's finding that it was a blanket ban on that provision of the Fourteenth Amendment, Judge Heytens said. The aptly named act was granting amnesty from that provision, but was "laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness," the court found, adding that the fact the law included a carve-out keeping the bar on high-ranking confederates was also noteworthy.

"Having specifically decided to withhold amnesty from the actual Jefferson Davis, the notion that the 1872 Congress simultaneously deemed any future Davis worthy of categorical advance forgiveness seems quite a stretch," Judge Heytens wrote.

The other two judges on the panel wrote lengthy concurrences as well, focusing on whether courts should have gotten involved in the case in the first place.

U.S. Circuit Judge Julius Richardson said he agreed with the decision to nix the lower court's injunction, but he said the problem was not the logic of the ruling, but its very existence. The question of Cawthorn's qualifications for office, he said, was a political question that fell outside a court's jurisdiction. He added that Article I of the Constitution barred a court's jurisdiction over federal lawmakers' qualifications, because "the House of Representatives here is not just a judge, it 'is the sole judge of the qualifications of its members.'"

And, he argued, the Fourteenth Amendment's bar on insurrectionists holding office essentially set a constitutional qualification for lawmakers no different from age or citizenship. That meant that by finding the Amnesty Act applied to Cawthorn, the district court was making an illicit judgment call about his qualifications.

In his concurrence, U.S. Circuit Judge James Wynn Jr. called this a "flawed blueprint for courts to stonewall the reasonable efforts of states to prevent frivolous candidates from running for congressional office." He disagreed that Congress had sole jurisdiction for determining candidate qualifications, noting the Constitution makes no mention of would-be lawmakers. Judge Richardson's reasoning would mean that no state could regulate its candidates or ballot, Judge Wynn said, and the result would flout the Elections Clause, which assigns the "times, places and manner of holding elections" to state legislatures.

"It stands to reason that as a matter of common sense, and as a matter of comity, our Constitution permits States to have a say in regulating the candidates who seek to represent their interests and the interests of their citizens," Judge Wynn wrote.

Free Speech For People, an advocacy group that represented the voters in the appeal, issued a statement saying the ruling would have an impact beyond the Cawthorn case.

"This ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of January 6, 2021 — including Donald Trump — from the consequences of their actions under the Fourteenth Amendment, and provides no basis to block state proceedings seeking to exclude insurrectionists from the ballot," the statement said.

Meanwhile, Cawthorn's attorney, James Bopp, said he couldn't understand why there was any ruling at all.

"The case is moot since the primary," he said in an email. "I am very surprised that the Fourth Circuit issued an opinion on a moot case."

U.S. Circuit Judges Toby Heytens, Julius Richardson and James Wynn Jr. sat on the panel for the Fourth Circuit.

Cawthorn is represented by James Bopp Jr. of the Bopp Law Firm.

The voters are represented by Pressly McAuley Millen of Womble Bond Dickinson LLP.

The case is Madison Cawthorn v. Barbara Lynn Amalfi, case number 22-1251, in the U.S. Court of Appeals for the Fourth Circuit.