Cawthorn v. Amalfi

• Decision Date: 24 May 2022
• Docket Number: 22-1251
• Citation: 35 F.4th 245
• Parties: Madison CAWTHORN, Plaintiff - Appellee, v. Barbara Lynn AMALFI; Laurel Ashton; Natalie Barnes ; Claude Boisson ; Mary Degree; Carol Ann Hoard; June Hobbs; Marie Jackson ; Michael Jackson; Anne Robinson; David Robinson; Carol Rose; James J. Walsh; Michael Hawkins; Melinda Lowrance; Ellen Beth Richard; Terry Lee Neal, Parties-in-Interest - Appellants. Constitutional Accountability Center, Amicus Supporting Appellants, and Damon Circosta, in his official capacity as Chair of the North Carolina State Board of Elections; Stella Anderson, in her official capacity as a member of the North Carolina State Board of Elections; Jeff Carmon, in his official capacity as a member of the North Carolina State Board of Elections; Stacy Eggers, IV, in his official capacity as a member of the North Carolina State Board of Elections; Tommy Tucker, in his official capacity as a member of the North Carolina State Board of Elections; Karen Brinson Bell, in her official capacity as the Executive Director of the North Carolina State Board of Elections, Defendants - Amici Curiae, and North Carolina Republican Party, Amicus Supporting Appellee, and Professor Derek T. Muller, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

35 F.4th 245

Madison CAWTHORN, Plaintiff - Appellee,

v. Barbara Lynn AMALFI; Laurel Ashton; Natalie Barnes ; Claude Boisson ; Mary Degree; Carol Ann Hoard; June Hobbs; Marie Jackson ; Michael Jackson; Anne Robinson; David Robinson; Carol Rose; James J. Walsh; Michael Hawkins; Melinda Lowrance; Ellen Beth Richard; Terry Lee Neal, Parties-in-Interest - Appellants.Constitutional Accountability Center, Amicus Supporting Appellants,andDamon Circosta, in his official capacity as Chair of the North Carolina State Board of Elections; Stella Anderson, in her official capacity as a member of the North Carolina State Board of Elections; Jeff Carmon, in his official capacity as a member of the North Carolina State Board of Elections; Stacy Eggers, IV, in his official capacity as a member of the North Carolina State Board of Elections; Tommy Tucker, in his official capacity as a member of the North Carolina State Board of Elections; Karen Brinson Bell, in her official capacity as the Executive Director of the North Carolina State Board of Elections, Defendants - Amici Curiae,andNorth Carolina Republican Party, Amicus Supporting Appellee,andProfessor Derek T. Muller, Amicus Curiae.

No. 22-1251

United States Court of Appeals, Fourth Circuit.

Argued: May 3, 2022

Decided: May 24, 2022

ARGUED: Pressly McAuley Millen, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellants. James Bopp, Jr., THE BOPP LAW FIRM, PC, Terre Haute, Indiana, for Appellee. ON BRIEF: Raymond M. Bennett, Samuel B. Hartzell, Scott D. Anderson, Margaret Hayes Jernigan Finley, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina; Ronald A. Fein, FREE SPEECH FOR PEOPLE, Newton, Massachusetts; John R. Wallace, WALLACE & NORDAN, LLP, Raleigh, North Carolina; James G. Exum, Jr., Greensboro, North Carolina; Robert F. Orr, ORR LAW, Raleigh, North Carolina, for Appellants. Melena S. Siebert, THE BOPP LAW FIRM, PC, Terre Haute, Indiana, for Appellee. Elizabeth B. Wydra, Brianne J. Gorod, Praveen Fernandes, Charlotte Schwartz, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amicus Constitutional Accountability Center. Joshua H. Stein, Attorney General, Amar Majmundar, Senior Deputy Attorney General, Stephanie A. Brennan, Special Deputy Attorney General, Terence Steed, Special Deputy Attorney General, Mary Carla Babb, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Amici Curiae Defendants. Philip R. Thomas, NORTH CAROLINA REPUBLICAN PARTY, Raleigh, North Carolina; Kevin J. Cline, KEVIN CLINE LAW, PLLC, Raleigh, North Carolina, for Amicus North Carolina Republican Party. Michael Francisco, Michael A. Brody, MCGUIREWOODS LLP, Washington, D.C., for Amicus Professor Derek T. Muller.

Before WYNN, RICHARDSON, and HEYTENS, Circuit Judges.

Reversed, vacated, and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge Wynn joined. Judge Wynn wrote a concurring opinion. Judge Richardson wrote an opinion concurring in the judgment.

TOBY HEYTENS, Circuit Judge:

In 1868—three years after the end of "the late wicked Rebellion," Ex parte Milligan , 71 U.S. 4 Wall. 2, 109, 4 Wall. 2, 18 L.Ed. 281 (1866) —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." U.S. Const. amend. XIV, § 3. Four years later, Congress exercised its constitutional authority to "remove such disabilit[ies]," id. , 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. Act of May 22, 1872, ch. 193, 17 Stat. 142. 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.¹

I.

North Carolina law allows "[a]ny qualified voter registered in the same district as the office for which [a] candidate has filed or petitioned" to file a challenge with the state board of elections asserting "that the candidate does not meet the constitutional or statutory qualifications for the office." N.C. Gen. Stat. §§ 163-127.1, -127.2. 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.

A week after Representative Cawthorn filed suit, the voters who filed the January challenge with the state board of elections sought leave to intervene as defendants. The district court denied that motion, concluding that the challengers had failed "to overcome the strong presumption" that the state board defendants adequately represented their interests and stating that the challengers' "brief adds little to nothing to the court's consideration of [Representative Cawthorn's] request for preliminary injunctive relief." JA 310, 312.

While this litigation was underway, the North Carolina Supreme Court introduced a procedural wrinkle by ruling that the congressional districts adopted by North Carolina's legislature violated the State's constitution and ordering that replacement maps be adopted. See Harper v. Hall , 380 N.C. 317, 868 S.E.2d 499, 509–11 (2022).²

After Representative Cawthorn identified the new district in which he intended to run, a group of voters from that district filed materially identical challenges contesting his qualifications on March 2, 2022. One of the original January challengers, Laurel Ashton, remained in Representative Cawthorn's new district and became one of the March challengers as well. Although Representative Cawthorn did not formally amend his complaint to reflect the new challenge and challengers, the parties and the district court treated the complaint and motion for preliminary injunction against the January challenge as applying to the March challenge as well.

The state board of elections announced its intent to hold a hearing on March 7, and the district court set a preliminary injunction hearing for three days earlier (March 4). At the hearing, the state board defendants vigorously opposed all of Representative Cawthorn's various claims, including his assertion that entertaining the challenge would violate the 1872 Amnesty Act. At the end of the March 4 hearing, the district court announced it was granting a preliminary injunction with a written opinion to follow. In its oral ruling, the court emphasized that the basis for its injunction was "very narrow" and rested exclusively on the court's "statutory determination" that the 1872 Amnesty Act applied to Representative Cawthorn. JA 475.

Five days later (March 9), the January challengers—including Ashton—filed a notice of appeal of both the order denying their motion to intervene and the district court's grant of a preliminary injunction. The challengers also sought an emergency stay of the district court's injunction pending appeal. The state board defendants neither filed their own appeal nor joined in the challengers' stay request.

The next day (March 10), the district court issued a written opinion that memorialized its conclusion about the 1872 Amnesty Act and stated it was entering "a permanent injunction." JA 509. Once again, the district court emphasized it was "not reach[ing] the constitutional questions" because "it was not necessary to do so." Id. The next day, the January challengers—including Ashton—filed an amended notice of appeal that added both the district court's written order and its grant of a permanent injunction.

On March 14—four days after the district court's written order—the state board defendants filed an amicus brief in this Court in response to the challengers' stay motion. That brief advised that the state board of elections was "reviewing the written order to determine whether it will file an appeal" and that, if such an appeal were filed, the state board defendants would not seek "expedited relief" from this Court. ECF 19 at 3.

On March 17, this Court denied the challengers' motion to stay the district court's injunction pending appeal. ECF 33. In the same order, the Court noted that "events since the district court's denial of intervention—including filings before this Court—reveal that circumstances may have changed" since the district court denied the initial motion to intervene. Id. at 2. Accordingly, the Court issued "a limited remand ... to permit appellants to file and the district court to consider...