Update to North Carolina State Board of Elections Says It Has The Authority To Determine Qualifications For Office Under Section 3 Of The 14th Amendment.

A Trump appointed federal district judge stepped in to stop the process in a politically motivated move to save Rep. Madison Cauthorn.


The district judge issued an injunction blocking the challenge from moving forward, on the supposed basis that an 1872 congressional amnesty for ex-Confederates (the 1872 Amnesty Act) absolved future insurrectionists, including those who engaged in the January 6, 2021 insurrection.

It didn’t work. Republican voters in North Carolina threw this insurrectionist out in last weeks primary.

A week later, the U.S. Court of Appeals for the 4th Circuit threw out the opinion of the Trump appointed judge, and ruled that participants in an insurrection against the U.S. government can be barred from holding office.

The Washington Post reports, Insurrectionists can be barred from office, appeals court says:

Participants in an insurrection against the U.S. government can be barred from holding office, the U.S. Court of Appeals for the 4th Circuit ruled Tuesday.

Read the Opinion.

The decision came in the case of Rep. Madison Cawthorn (R), who before losing his House primary this month faced a challenge from North Carolina voters arguing that his actions around the Jan. 6, 2021, U.S. Capitol attack made him ineligible for future public service. Cawthorn suggested his case was moot given his primary loss, but the court disagreed, given that the election had not yet been certified and because the same issue could come up in another campaign.

The voting rights group Free Speech For People is backing challenges to several Republicans under a post-Civil War law that blocks from taking office anyone “who, having previously taken an oath, as a member of Congress … engaged in insurrection or rebellion.”

Even though Cawthorn won’t be on a ballot this fall, the voters argued that the court had to overturn a lower court’s opinion that all insurrectionists, past and future, were granted amnesty under another law from the 1870s that forgave most Confederates.

The appeals court sided with the voters, without ruling on whether Cawthorn personally engaged in an insurrection or on whether the process state officials planned to use to decide this question was constitutional.

“The available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness,” Judge Toby J. Heytens wrote on behalf of the three-judge panel. He called it “quite a stretch” to read the law as giving “categorical advance forgiveness” to any future rebel leader.

Cawthorn spoke at the rally that preceded the attack on the Capitol, telling the crowd to “fight.” His challengers point to that, along with reporting indicating his office was working with protest organizers before the event, to assert that he engaged in insurrection. He has denied any advance knowledge of plans for violence.

Free Speech For People also challenged the candidacy of Rep. Marjorie Taylor Greene (R-Ga.); she was cleared by state officials to run for reelection, but litigation continues. A state court dismissed challenges to the candidacy of two Arizona House members [Andy Biggs, Paul Gosar, and state Rep. Mark Finchem.]

Those cases have been appealed, and the court should tke judicial notice of this 4th Circuit Court opinion.

Attorneys for Cawthorn argued that since the House of Representatives can grant any insurrectionist amnesty with a two-thirds vote, state officials can’t preemptively take someone off the ballot for activity that may yet be forgiven.

Judge Julius N. Richardson agreed with that position, writing that he would reverse the lower court decision not for misinterpreting the amnesty law, but for considering it at all: “The only actor in our American constitutional system that can judge the qualifications of members of the House of Representatives is the House of Representatives itself.”

Note: While the decision was unanimous, Judge Richardson’s opinion should be read as a partial dissent.

Free Speech For People provides more details in a press release:

In a major victory for the voter challengers, the Court of Appeals reversed the district court. As the majority opinion by Judge Heytens explained:

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. … 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.

In a concurring opinion, Judge Wynn joined the majority opinion and also explained why states may adjudicate challenges to the qualifications of congressional candidates.

The court cited a recent ruling in another case led by Free Speech For People, involving Representative Marjorie Taylor Greene, in which a federal judge in the Northern District of Georgia also ruled that the 1872 Amnesty Act did not apply to future insurrectionists.

While Cawthorn has conceded his loss in the primary election, the court ruled that the federal case is not legally moot, and remanded the case to the district court.

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 voters who challenged Cawthorn’s eligibility for office are represented by Free Speech For People, which is serving as co-lead counsel in the matter; Womble Bond Dickinson, a North Carolina law firm serving as co-lead counsel; Wallace & Nordan, a North Carolina law firm specializing in election law; and Robert F. Orr, a former Republican Justice of the North Carolina Supreme Court. James G. Exum, Jr., a former Chief Justice of the North Carolina Supreme Court, serves as Of Counsel in the matter.

The Constitutional Accountability Center submitted an amicus brief in support of the voters, providing a detailed analysis of the historical background of the 1872 Amnesty Act.

Free Speech For People and Our Revolution are co-leading a national campaign to ensure that election officials across the country follow the mandate of Section Three of the Fourteenth Amendment and bar elected officials who engaged in the insurrection, including former President Donald Trump, from appearing on any future ballot. More information about that campaign is available at www.14point3.org.