From Cawthorn v. Amalfi, decided today by the Fourth Circuit (Judge Toby Heytens, joined by Judge James Wynn):
{In January 2022, shortly after the North Carolina state legislature redrew its congressional districts, a group of voters in Representative Madison Cawthorn's district filed such a challenge. According to the voters, Representative Cawthorn encouraged the violent mob that disrupted the peaceful transition of power by invading the United States Capitol on January 6, 2021, and that encouragement constituted "insurrection" and disqualifies Representative Cawthorn for further service in Congress.
Seeking to stop the challenge process from going forward, Representative Cawthorn sued the members of the state board of elections in federal district court. The complaint raises four discrete theories for enjoining the state administrative proceeding, specifically that it: (1) impermissibly burdens Representative Cawthorn's First Amendment right to run for political office; (2) places the burden of proof on Representative Cawthorn in violation of the Due Process Clause; (3) usurps Congress's power under Article I, Section 5 of the Constitution to be "the Judge of the … Qualifications of its own Members"; and (4) violates the 1872 Amnesty Act.}
In 1868—three years after the end of "the late wicked Rebellion"—the Constitution was amended to disqualify from future federal or state 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 exercised its constitutional authority to "remove such disabilit[ies]" by enacting legislation lifting the "political disabilities imposed by" Section 3 of the Fourteenth Amendment "from all persons whomsoever" with the exception of certain high-ranking federal officers who had joined the Confederacy.
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. Accordingly, we reverse the district court's grant of injunctive relief and remand for further proceedings [including potentially dealing with Rep. Cawthorn's other objections -EV].
