Appellate judges critique lower court handling of Cawthorn challenge

NC redistricting litigation highlights importance of Congress making election law




A U.S. District Court judge likely made errors in his ruling that North Carolina cannot consider challenges against congressional candidates who may have participated in or supported insurrection or rebellion against the United States, according to judges in a higher court.

In January, voters challenged the eligibility of U.S. Rep. Madison Cawthorn, R-North Carolina, to run for reelection, alleging he violated a section of the U.S. Constitution that bars elected officials who then participate in or support an insurrection from holding office again. Cawthorn sued in federal court to block the state candidacy challenge proceedings.

Cawthorn and his lawyers categorically deny the challenge claims, but the lawsuit is about a state’s authority to review congressional candidates’ qualifications, not Cawthorn’s alleged actions. His argument won at the District Court level in March, when Judge Richard Myers II ruled in his favor.

But during oral arguments Tuesday, each of three judges on a federal 4th Circuit Court of Appeals panel said the District Court judge likely got something wrong. The appellate judges were not unified in the details of their critique, making it hard to predict how, or when, they will rule on the case. 

Both the judges and the parties to the case have many options before them, meaning that the case’s “tortured procedural history,” as one lawyer called it, is likely far from being put to rest. 

The judges’ options include making a narrow ruling and passing the case back down to District Court for reconsideration, making a decisive ruling in favor of or against Cawthorn.

The group backing the challenge against Cawthorn, Free Speech for People, is also the one that appealed the District Court decision. Free Speech for People, a nonprofit, nonpartisan legal advocacy group for a stronger democracy, has filed similar challenges against U.S. Rep. Majorie Taylor Greene, R-Georgia, and against U.S. Reps. Paul Gosar, Andy Biggs and state Rep. Mark Finchem, who are all Arizona Republicans. 

The 4th Circuit is one of 12 regional federal appellate courts in the U.S. It oversees North Carolina, Virginia, South Carolina, Maryland and West Virginia. 

Because the challenges to the other politicians are in states not overseen by the 4th Circuit, they would not be controlled by the pending decision on the Cawthorn case. 

Depending on the 4th Circuit panel ruling, the parties in the cases would have a number of options, including asking for all 17 4th Circuit Court judges to weigh in, appealing to the U.S. Supreme Court or cutting their losses and letting the dust settle. Both parties indicated that the last option is unlikely. 

A question of authority 

Cawthorn’s lawsuit centers around one question: Does the state’s candidate challenge law violate the U.S. Constitution when applied to candidates for Congress? 

Cawthorn’s attorney brought claims under several sections of the Constitution, but one claim in particular got the most attention in Tuesday’s oral arguments. 

Under Article I, Section 5 of the U.S. Constitution, “Each House shall be the judge of the elections, returns and qualifications of its own members.” 

Cawthorn’s lawyer, James Bopp Jr., argued that means only the U.S. House of Representatives can decide whether the candidates elected by the people meet the qualifications to sit in the House. In other words, the state of North Carolina does not have the authority to review qualifications for congressional candidates like Cawthorn.

Judge Julius Richardson, nominated to the court by then-President Donald Trump in 2018, indicated he agreed with this argument and used it to critique the lower court’s decision.

If only Congress can judge qualifications of its own members, then the District Court erred by stepping into the fray at all, he said. 

Judge James Wynn, nominated by then-President Barack Obama in 2009, disagreed.

“I think there’s no authority that states it that explicitly,” he said. 

Judge Toby Heytens, nominated by President Joe Biden in 2021, also appeared skeptical of that interpretation and asked whether Bopp’s contention meant that North Carolina lacked authority to remove an out-of-state politician not eligible to run for Congress from the North Carolina ballot. 

Bopp agreed that the state cannot remove someone from out of state from the ballot and said two ways exist to solve the problem. 

“Congress can do something about it, but the voters can do something about it,” Bopp said. “Come on. You think somebody’s going to run from South Carolina and get elected in North Carolina?” 

The lawyer representing the challengers to Cawthorn’s candidacy, Pressly Millen, pointed to the history of voters supporting candidates who posed a problem for national cohesion. 

“Voters in the former Confederacy wanted to be represented by insurrectionists,” Millen said. “North Carolina even tried to send its Confederate governor, Zebulon Vance, to Congress.”  

 A question of timing 

Thousands of voters have already cast absentee ballots by mail and through early in-person voting for the May 17 primary. The challenge was originally brought to keep Cawthorn off the Republican primary ballot, but that’s no longer possible. 

Should the judges approve the state’s authority to review congressional candidate qualifications, the Cawthorn challenge could still go forward on one of two paths, according to a legal filing from the N.C. State Board of Elections.

If neither Cawthorn nor any other Republican candidate earns more than 30% of the vote in the highly contested race, the second-place finisher can request a runoff, or “second primary.” That would take place July 26, with absentee-by-mail ballots needing to be ready by June 2, the board told the court. 

That is a very tight turnaround should the court decide to allow the candidate challenge against Cawthorn to go forward. The North Carolina challenge procedure for congressional candidates starts with a panel of county election board members, then goes to the State Board of Elections on appeal, then the state Court of Appeals, a process the board estimates to take 20-25 days. 

For Cawthorn to be kept off the second primary ballot, the federal Court of Appeals would need to rule in the challengers’ favor quickly. Then the state courts would need to ultimately decide Cawthorn is ineligible, far from a guarantee. 

Should Cawthorn either win outright in the primary or win in a runoff, state law would still allow him to be blocked from running in the general election. Those ballots must be ready by Sept. 9.

For that to happen, the federal courts must decide in favor of the challengers, the state challenge process must be completed and in favor of the challengers, and the 11th District Republican Party must identify a replacement, all by late August. 

Documents

Members of the public can access case documents in federal court through a website called PACER. To access all the documents related to Cawthorn’s initial lawsuit against the State Board of Elections, search case number 5:22-cv-00050-M. 

To access all the documents related to the appeal, search case number 22-1251.



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