Major victory for upholding the mandate of Section 3 of the Fourteenth Amendment, the Insurrectionist Disqualification Clause

As reported in the Washington Post, the U.S. Court of Appeals for the Fourth Circuit issued a ruling on May 24 on the appeal of a federal lawsuit filed by Representative Madison Cawthorn to block the North Carolina State Board of Elections from adjudicating voters’ challenge to Cawthorn’s candidacy based on the Fourteenth Amendment’s Insurrectionist Disqualification Clause. A federal district judge had issued an injunction blocking that 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.

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.

Read the opinion here.

Read here for more background on the challenge to Madison Cawthorn’s candidacy under Section Three of the Fourteenth Amendment.