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Civil War-era insurrection rule can still be used against candidates, appeals court rules

WASHINGTON — Joining an insurrection or rebellion against the United States can disqualify a public official from continuing to serve, a federal appeals court ruled Tuesday. But the court left unresolved whether that part of the US Constitution could or should apply to politicians who played a role in the events surrounding the January 6 attack on the US Capitol.

The decision by the US Court of Appeals for the Fourth Circuit is a loss for Rep. Madison Cawthorn, who had argued that an 1872 amnesty law passed by Congress meant that the disqualifying language in the 14th Amendment, which also had its roots in office – Civil War Era: did not apply to future insurrections or rebellions. The appeals court disagreed with Cawthorn’s interpretation and reversed a trial judge.

But the appeals court did not go into some of the more specific questions raised by the Cawthorn case, such as whether Jan. 6 was, at least in the eyes of the federal judiciary, an “insurrection” or whether Cawthorn’s actions around on Jan. 6 — or those of other members of Congress who endorsed former President Donald Trump’s lies that the election was stolen due to widespread fraud — could disqualify him from future office. The Fourth Circuit also left it to a district judge to decide whether Cawthorn’s main loss should end the legal fight altogether.

Cawthorn is not the only member of Congress facing an election challenge related to Jan. 6. Representative Marjorie Taylor Greene, a leading proponent of unsubstantiated voter fraud theories, recently defended Similar claims by Georgia voters that she should be disqualified from running for re-election under the 14th Amendment.

The case involved the recent — and finally unsuccessful – Candidacy for re-election. The North Carolina Republican faced a challenge before the North Carolina Board of Elections from voters who argued that he had encouraged the mob that stormed the Capitol, disqualifying him under the 14th Amendment. The section of the amendment in question states that a A person cannot hold office if he or she took an oath to protect the Constitution and then “was insurrection or rebellion against it” or gave “aid or comfort to the enemies of it.”

The amendment’s insurrectionary language had its origins in the immediate post-Civil War era, when Congress tried to figure out what to do about public officials who had backed the Confederacy. However, a few years later, Congress passed the Amnesty Act of 1872, which stated that the disqualifying language “imposed” by the 14th Amendment was “removed,” with exceptions for members of Congress who were in office for the Civil War and other categories of high-ranking officials.

The question the Cawthorn case raised was whether the amnesty law of 1872 only applied to Confederate supporters who had been covered by the disqualifying language of the 14th Amendment, or whether it also served as a type of future amnesty.

US District Judge Richard Myers II opted for the latter interpretation, finding in a March decision that the 1872 amnesty law did apply to Cawthorn, meaning that North Carolina state officials could not consider a challenge to Cawthorn. disqualification based on the 14th Amendment. But in Tuesday’s decision, the Fourth Circuit disagreed, holding that Congress’ use of the past-tense word “tax” kept the amnesty law rooted in the past.

“To the contrary, the available evidence suggests that the Congress that enacted the Amnesty Act of 1872 understandably focused on the pressing problems posed by the hordes of former Confederates seeking pardon,” Judge Toby Heytens confirmed to the 4th. Circuit under President Joe Biden, wrote in the court’s majority opinion.

Heytens wrote that the exceptions in the 1872 amnesty law, which included members of the 36th and 37th Congresses, who would have served between 1859 and 1863, was proof that the amnesty was limited to the period of the Civil War.

“Having specifically decided to deny amnesty to the Really Jefferson Davis, the notion that the 1872 Congress simultaneously considered that any future Davis would deserve a categorical early pardon seems rather far-fetched,” Heytens wrote, referring to the former senator who would become president of the Confederate States (emphasis in original).

Cawthorn’s attorney, James Bopp Jr., did not immediately respond to a request for comment. A spokesperson for Free Speech for People, an advocacy group that backed the challenge filed against Cawthorn by state voters, also did not immediately respond, but posted a statements calling the decision a “great victory”.

Cawthorn could ask the full 4th Circuit to reconsider the three-judge panel’s decision or ask the US Supreme Court to hear the case.

Cawthorn had filed a notice with the court a few days ago about his principal loss and took the position that the case was moot; Courts generally only decide matters live. In a footnote, Heytens noted that the main winner had not yet been officially certified. The appeals court ultimately left it to the district court judge to decide if the case was moot and should be dismissed, though the race was over for Cawthorn, Heytens wrote that Myers could decide if the fight presented a problem “reasonably likely to recur.” “The courts have yet to rule.

Judge Julius Richardson, confirmed to the Fourth Circuit under Trump, separately wrote that only Congress could make qualifying judgments on its own members, so he thought Myers was wrong to delve into the 14th Amendment issue.

Judge James Wynn, confirmed under former President Barack Obama, wrote his own concurrence to disagree with Richardson, saying he created “a flawed plan for the courts to obstruct reasonable efforts by states to prevent frivolous candidates from running for office.” in Congress”. Heytens’s majority opinion made it clear that the court was not officially deciding the question of whether only the House of Representatives could make constitutional disqualification decisions or whether the states could also play a role.

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