Foes of Cawthorn Go to Appeals Court in Last-Ditch Bid To Block His Re-Election Effort

The Tar Heel Republican earlier triumphed in federal court.

Representative Madison Cawthorn. House Television via AP.

Republican voters in North Carolina will receive their primary ballots in two months, and it is uncertain whether they will see Representative Madison Cawthorn’s name listed as a candidate for office. 

The latest twist in the saga of the effort to disqualify Mr. Cawthorn as an “insurrectionist” based on the Disqualification Clause of the 14th Amendment transpired on Monday. The group leading the charge to ban the Tar Heel Republican, Free Speech for People, filed an appeal to the riders of the Fourth Circuit of the United States Court of Appeals.

Their appeal is a last-ditch effort to block Mr. Cawthorn after he triumphed in federal court. A district judge, Richard Myers, held that the 1872 Amnesty Act, passed four years after the Disqualification Clause by a two-thirds vote in Congress, offered a prospective shield of clemency.

That is, it cleared those officeholders who would in the future face accusations of “engaging” in insurrection under the provisions of the 14th Amendment. This holding meant that the Amnesty Act’s protection extended from Confederates to Mr. Cawthorn, whose involvement with the events of January 6 precipitated the challenge.  

In a more immediate sense, Judge Myers’s ruling short-circuited Free Speech’s efforts to challenge Mr. Cawthorn’s candidacy before the North Carolina Board of Elections, which was set to hear the case before Mr. Cawthorn secured the federal injunction.

In its written filing asking the appellate court to reverse Judge Myers, Free Speech for People faces two hurdles. First is convincing the riders of the Fourth Circuit that the North Carolinians opposed to Mr. Cawthorn’s candidacy whom it represents have “standing” to sue. Standing is a legal requirement that the party bringing a case in court actually has the legal right to petition the court for relief. This usually involves showing that a party has been injured. 

However, in this case Judge Myers’s injunction is aimed not at voters but at North Carolina state officials, prohibiting them from blocking Mr. Cawthorn. In order to gain a foothold in the evolving legal terrain, Free Speech needs to argue that because the suit was initially brought by voters, they should be entitled to make their case before courts “permanently and finally block their state candidacy Challenge.” 

In a separate filing, the Board of Elections noted that it has not decided whether it intends to appeal, but that if it does it will not request that the case be heard in an especially expeditious fashion. It also informed the court of appeals that since ballots are due to be printed on March 28, any challenge to Mr. Cawthorn’s candidacy must be resolved by then.

The second matter on which Free Speech will have to sway the Fourth Circuit is the crucial question of whether the Amnesty Act applies prospectively, as Judge Myers ruled, or only retrospectively, as Free Speech maintains. 

In withering language, Mr. Cawthorn’s opponents label the prospective approach championed by Mr. Cawthorn and vindicated by Judge Myers as a “novel and bizarre statutory interpretation contradicts the statutory text, basic logic, legislative history, and Congress’s own understanding.” It would, they say, mean that “the 1872 Act granted amnesty to all future insurrectionists from 1872 until the end of time.”

Instead, Free Speech argues that “if the 1872 Act had intended to render the Disqualification Clause forever nugatory, then, at a minimum, Congress would have plainly said so.” Borrowing language from the realm of trusts and estates, it insists “any plain reading of the 1872 Act necessarily must recognize that it could apply only to lives in being, not future generations of insurrectionists.”

With elections set for May 17, the question of whether the Amnesty Act looks forward or backward is now the front line of Mr. Cawthorn’s battle for his political life. 

The New York Sun

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