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Voters may proceed with ineligibility challenge

Where voters filed a challenge with the North Carolina board of elections, alleging that Madison Cawthorn was ineligible for office because of his conduct in connection with the Jan. 6, 2022, insurrection, the district court erred when it held the 1872 Amnesty Act barred their effort.


In 1868, the Constitution was amended to disqualify from future 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 removed “such disabilit[ies],” by enacting legislation lifting the “political disabilities imposed by” section 3 of the 14th Amendment “from all persons whomsoever” with the exception of certain high-ranking federal officers who had joined the Confederacy.

In January 2022, a group of voters in the district of North Carolina Representative Madison Cawthorn filed a challenge with the state board of elections asserting that he did not meet the constitutional or statutory qualifications for the office, because he allegedly encouraged the violent mob that disrupted the peaceful transition of power by invading the United States Capitol on Jan. 6, 2021,

Seeking to stop the challenge process from going forward, Cawthorn sued the members of the state board of elections in federal district court. After denying the voters’ motion to intervene, the district court held that the 1872 Amnesty Act applied to Cawthorn.


The only named defendants covered by the district court’s injunction (the state board members) have elected not to appeal, and the only people who seek to challenge the injunction (the various challengers) were denied leave to intervene by the district court. As such, the court must first determine whether the challengers should have been allowed to intervene.

The intervenors have a “personal stake” in the outcome of this case that derives from the still-pending challenge proceeding they filed with the state board of elections that was enjoined by the district court. The district court nevertheless denied Ashton’s motion to intervene on timeliness grounds, reasoning that she delayed moving to intervene after its preliminary injunction ruling on March 4, when it was clear that the state board defendants would not seek appellate review.

That reasoning constitutes “a clear error in judgment” that renders the denial of intervention an abuse of discretion. The state board defendants vigorously contested Cawthorn’s statutory argument both in their pre-hearing briefing and at the preliminary injunction hearing itself and gave no advance indication they would later decline to appeal an adverse ruling on that issue. The district court also exceeded the bounds of its discretion in concluding that intervention would “prejudice” Cawthorn by subjecting him to “‘new’ arguments, unanticipated theories, and possible re-litigation of issues already decided.”


The district court concluded that Cawthorn had standing based solely on an ostensible First Amendment injury — namely, a burden on his right to run for office. But Cawthorn’s standing to pursue his First Amendment challenge did not necessarily encompass standing to pursue a different claim based on the 1872 Amnesty Act. The court nevertheless concludes that Cawthorn has Article III standing to pursue his 1872 Amnesty Act claim. The court also concludes that the case’s current posture does not require it to rule on any nonjusticiable political questions.


The Act’s operative clause refers to those “political disabilities imposed ” in the past tense rather than new disabilities that might arise in the future. As such, the district court’s focus on the Act’s use of “all persons whomsoever”—which formed nearly the entire basis for its ruling—was misplaced. Without question, that phrase conveys broad action, and granting political amnesty to nearly all ex-Confederates in one fell swoop surely was a remarkable act. But the subject of the relevant sentence is the “disabilities” that are being “removed.”

Thus, to understand what Congress did, the court must look to any phrases modifying those “disabilities.” And that, in turn, brings it back to where it began: the fact that Congress did not purport to “remove[ ]” any disabilities that had not yet been “imposed.” The Act’s history and context further confirm the point. Thus, the 1872 Amnesty Act does not categorically exempt all future rebels and insurrectionists from the political disabilities that otherwise would be created by Section 3 of the Fourteenth Amendment.

Reversed, vacated and remanded.

Concurring opinion

Wynn, J., concurring:

I fully concur in Judge Heytens’s well-reasoned and persuasive majority opinion. But Judge Richardson’s provocative and novel concurrence compels a correcting response. It 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.

Concurring opinion

Richardson, J., concurring in the judgment:

I agree that the district court erred. But in 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. The district court did not have jurisdiction to consider Cawthorn’s claim under the 1872 Amnesty Act, which ultimately asked the court to determine his qualifications, a privilege and duty given only to the House itself.

Cawthorn v. Amalfi, Case No. 22-1251, May 24, 2022. 4th Cir. (Heytens), from EDNC at Raleigh (Myers). Pressly McAuley Millen for Appellants. James Bopp Jr. for Appellee. VLW 022-2-127. 73 pp.

VLW 022-2-127

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