Madison Cawthorn v. Barbara Lynn Amalfi

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1251
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

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NORTH CAROLINA REPUBLICAN PARTY,
Amicus Supporting Appellee,
and
PROFESSOR DEREK T. MULLER,
Amicus Curiae.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Richard E. Myers, II, Chief District Judge. (5:22-cv-00050-M)
Argued: May 3, 2022 Decided: May 24, 2022
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.
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

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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.

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TOBY HEYTENS, Circuit Judge:
In 1868—three years after the end of “the late wicked Rebellion,” Ex parte Milligan,
71 U.S. 2, 109 (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
1 Representative Cawthorn suggests that this case is moot because unofficial reports
from the May 17 primary suggest he will not be the nominee for his party this year.
Nevertheless, based on the record before us, this appeal is not currently moot in an Article
III sense because a primary winner has not yet been certified and it does not appear the
challengers have withdrawn their challenge. See generally N.C. Gen. Stat. § 163-182.5
(describing the process for authenticating primary results); Calendar of Events,
https://www.ncsbe.gov/current-sbe-events (setting date to authenticate results for June 9,
2022). And to the extent future developments may bear on any mootness inquiry—
including whether a controversy is reasonably likely to recur, see Kingdomware Techs.,
(continued)

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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
Inc. v. United States, 579 U.S. 162, 170 (2016)—we are ill-suited to assess such matters
on the current record. See, e.g., North Carolina Right to Life Comm. Fund for Ind. Pol.
Expenditures v. Leake, 524 F.3d 427, 435 (4th Cir. 2008) (appeal involving election
regulations is not moot when “there is a reasonable expectation that the challenged
provisions will be applied against the plaintiffs again during future election cycles”).
Because the district court is better suited to apply this fact-intensive test, we leave any
questions about whether the primary results will ultimately moot this case to that court in
the first instance.

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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, 868 S.E.2d 499, 509–11 (N.C. 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
2 Although a petition for a writ of certiorari from the underlying decision remains
pending, the Supreme Court declined to issue a stay. See Moore v. Harper, 142 S. Ct. 1089
(2022). As a result, the current maps will be in effect for at least the 2022 election.

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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.

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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 a new motion to intervene on an expedited basis.”
Id. at 2–3. The same day, the March challengers (once again including Ashton) filed an
“Expedited Renewed Motion to Intervene as Defendants” with the district court. JA 525.
The district court denied that motion to intervene as well, primarily on the ground
that it was untimely. Specifically, the court faulted the March challengers for failing to
seek intervention immediately following its grant of a preliminary injunction on March 4
or the entry of its written order on March 10. Acknowledging it had already denied a motion
to intervene by the identically situated January challengers by the time that window
opened, the district court reasoned the March challengers should have predicted that the
state board defendants would decline to vigorously pursue appellate relief because the court
had ruled on statutory grounds relatively unique to this challenge rather than constitutional
grounds with broader implications for the State’s processes. The district court further stated

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that the delay associated with an appeal by the challengers would “unduly prejudice”
Representative Cawthorn and could force him “to respond to ‘new’ arguments,
unanticipated theories, and possible re-litigation of issues already decided.” JA 752
(footnote omitted).
Following the district court’s denial of their motion to intervene, the March
challengers promptly appealed that order along with all the underlying orders on the merits.
The state board defendants never filed their own appeal, and the time to do so has now
elapsed. See Fed. R. App. P. 4. The state board defendants also have not participated
substantively in this appeal, nor did they appear at oral argument.
II.
This appeal arrives in an unusual procedural posture. The only named defendants
covered by the district court’s injunction (the state board members) have elected not to
appeal, and the only people who seek to challenge the injunction (the various challengers)
were denied leave to intervene by the district court. The upshot of this odd situation is that
we cannot reach the merits unless we determine the challengers should have been allowed
to intervene. For that reason, we begin by addressing two issues related to intervention.
The first is Representative Cawthorn’s assertion that the challengers lack Article III
standing to pursue this appeal. The second is the challengers’ assertion that the district
court exceeded its discretion in denying their motion to intervene.
A.
We start with “standing to appeal.” Virginia House of Delegates v. Bethune-Hill,
139 S. Ct. 1945, 1950 (2019). Because they are the ones invoking the appellate jurisdiction

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of this Court, the challengers must demonstrate “that [they] personally ha[ve] suffered
some actual or threatened injury.” Diamond v. Charles, 476 U.S. 54, 62 (1986) (quotation
marks omitted). Representative Cawthorn’s primary argument about standing is that the
challengers cannot establish such an injury because they assert only a generalized
grievance shared by all voters in their district. We disagree.3
Representative Cawthorn relies on what he perceives as a parallel between the
challengers here and the unsuccessful petitioners in Hollingsworth v. Perry, 570 U.S. 693
(2013). The Hollingsworth petitioners were the “official proponents” of a ballot initiative
that successfully amended the California Constitution to provide that “[o]nly marriage
between a man and a woman is valid or recognized in California.” Id. at 701–02 (alteration
in original) (quotation marks omitted). The relevant state officials declined to defend the
law against a federal constitutional challenge, and the proponents were allowed to intervene
to do so. Id. at 702. After the district court enjoined enforcement of the law, the state official
defendants declined to appeal and the proponents sought to file their own appeal. Id. As
support for their standing to do so, the proponents claimed that California law gave them a
“unique, special, and distinct role in the initiative process—one involving both authority
3 Because of the redrawing of the State’s maps, the January challengers other than
Ashton no longer reside in Representative Cawthorn’s district. As a result, those
challengers are no longer eligible to file a challenge under North Carolina law and their
claims are thus moot. See N.C. Gen. Stat. §§ 163-127.1, -127.2. In contrast, Ashton has
continuously maintained the necessary stake because she filed her current challenge before
this appeal was filed.

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and responsibilities that differ from other supporters of the measure.” Id. at 706 (quotation
marks omitted).
The Supreme Court was unpersuaded. It was “[t]rue enough,” the Court
acknowledged, that state law gave the proponents “a unique, special, and distinct role”
“when it comes to the process of enacting the law,” including the responsibility “for
collecting the signatures required to qualify the measure for the ballot,” “to file the measure
with election officials to put it on the ballot,” and to “control . . . the arguments in favor of
the initiative that would appear in California’s ballot pamphlets.” Hollingsworth, 570 U.S.
at 706–07 (emphasis added) (quotation marks omitted). But once the ballot measure
became law, the Court emphasized, the proponents “ha[d] no role—special or otherwise—
in the [law’s] enforcement.” Id. at 707. Because upholding the law’s constitutionality after
its enactment “no more directly and tangibly benefit[ed] [the proponents] than it [did] the
public at large,” the Supreme Court concluded the proponents lacked Article III standing
to appeal the district court’s injunction. Id. at 706 (quotation marks omitted).
Things are different here. The challengers before us do not seek merely to defend
the legality of a state law. Instead, their “personal stake” in the outcome of this case,
Hollingsworth, 570 U.S. at 707 (quotation marks omitted), derives from the still-pending
challenge proceeding they filed with the state board of elections that was enjoined by the
district court. North Carolina law grants the challengers extensive rights in that
proceeding—indeed, rights that are roughly comparable to those of a litigant in court. The
board of elections must hold a hearing. N.C. Gen. Stat. § 163-127.4(a). A challenger may
take “depositions prior to the hearing” and request “subpoenas for witnesses or

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documents.” § 163-127.4(a)(2), (3). At the hearing, a challenger may present evidence and
examine witnesses. § 163-127.4(c)(1), (2). A challenger who loses may appeal as of right
to the North Carolina Court of Appeals, § 163-127.6(b)(1), and then via discretionary
review to the North Carolina Supreme Court and the Supreme Court of the United States,
see N.C. Const. art. IV, § 12(1); 28 U.S.C. § 1257(a). These challengers thus possess
precisely the kind of special “authority and responsibilities” that the Hollingsworth
petitioners lacked. 570 U.S. at 706 (quotation marks omitted).
To be sure, the “deprivation of a procedural right without some concrete interest
that is affected by the deprivation—a procedural right in vacuo—is insufficient to create
Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009); accord
Spokeo, Inc. v. Robins, 578 U.S. 330, 342 (2016). But this case does not involve the kinds
of purely procedural rights at issue in those cases, which involved decisionmaking
procedures (for the government and a credit-reporting firm, respectively) that did not
“require [or] forbid any action on the part of ” the plaintiffs. Summers, 555 U.S. at 493; see
also Spokeo, 578 U.S. at 335–36. Here, in contrast, the district court’s injunction operates
directly on the challengers by preventing them, personally, from exercising their rights to
engage in discovery and participate in a hearing that would result in a binding adjudication
of their claims.4 And that fact—that the district court’s injunction precludes them “from
4 These features of North Carolina law distinguish the notice-and-comment
procedures allegedly not followed in Summers; there, the government would have been
free to disregard any comments filed so long as it acted within the wide latitude afforded
by the Administrative Procedure Act. See Summers, 555 U.S. at 490, 496–97.

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doing [some]thing” in the real world, Trump v. New York, 141 S. Ct. 530, 536 (2020) (per
curiam) (quotation marks omitted)—gives the challengers the requisite personal stake in
this appeal. Cf. Salazar v. Buono, 559 U.S. 700, 711–13 (2010) (litigant who secured an
injunction had standing to enforce that injunction even if he lacked Article III standing to
secure the underlying injunction in the first place).5
Nor does it matter whether the challengers’ interests in the state process amount to
“a ‘property’ interest protected under the Fourteenth Amendment.” Appellee Br. 25.
Representative Cawthorn cites no precedent supporting such a requirement, and we are
aware of none. On the contrary, the Supreme Court has recognized that even “recreational”
or “aesthetic” interests can support standing. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 184 (2000). The injuries that can establish standing are
therefore a broader and more diverse category than the interests necessary for due process
protections to attach.
B.
We turn next to whether the district court abused its discretion in denying the motion
to intervene. See Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013) (“It is well settled that
district court rulings on . . . intervention motions are to be reviewed for abuse of
5 In any event, the challengers also have a stake in the outcome of the (now-
enjoined) administrative process because it will affect the choices that appear on their
ballot. Cf. Baten v. McMaster, 967 F.3d 345, 352–53 (4th Cir. 2020), as amended (July 27,
2020). Although others in the same district may share that interest, “[t]he fact that an injury
may be suffered by a large number of people does not of itself make that injury a
nonjusticiable generalized grievance.” Spokeo, 578 U.S. at 339 n.7; accord Gill v. Whitford,
138 S. Ct. 1916, 1930 (2018) (specifically contemplating district-wide injuries).

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discretion.”). In doing so, we limit our focus to Ashton’s March 17 motion because that
case for intervention is the most straightforward and Ashton’s appeal adequately presents
all the issues before us.
We conclude that the district court exceeded the bounds of its discretion in refusing
to allow Ashton to intervene after our limited remand. The court denied Ashton’s renewed
motion principally on timeliness grounds, relying almost exclusively on Ashton’s failure
to move again to intervene during the eight-day window between when she re-filed her
challenge in Representative Cawthorn’s new district (March 2) and the date of the district
court’s written order (March 10). The district court’s theory was that—at least after its
preliminary injunction ruling on March 4—it was clear that the state board defendants
would not seek appellate review because the court had ruled only on a narrow statutory
basis rather than a broader constitutional one.
That reasoning, we conclude, constitutes “a clear error in judgment” that renders the
denial of intervention an abuse of discretion. Wesberry v. Gislaved Gummi AB, 178 F.3d
257, 261 (4th Cir. 1999) (quotation marks omitted). The state board defendants vigorously
contested Representative Cawthorn’s statutory argument both in their pre-hearing briefing
and at the preliminary injunction hearing itself and gave no advance indication they would
later decline to appeal an adverse ruling on that issue. In fact, at the conclusion of the March
4 hearing, the district court complimented the state board defendants on their thorough
arguments, stating they “could not have done a better job . . . in squarely presenting the
issues.” JA 476.

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The state board defendants first revealed their decision against expediting any
appeal on March 14—four days after the end of the period during which the district court
concluded that Ashton should have filed a new motion to intervene. On that day, the state
board defendants advised this Court that they had not yet decided whether to appeal but,
even if they did, they would not seek to expedite review of the district court’s order.
Because this Court’s ordinary processes would not have resulted in an oral argument (much
less a decision) on any such appeal until mid-September 2022 at the earliest—and because
the entire challenge procedure (including any post-hearing appeals) would still need to take
place were such an appeal ultimately to succeed—the state board defendants’ decision to
forgo seeking an expedited appeal meant there was virtually no possibility that the
challengers could obtain meaningful relief from the district court’s order before the general
election in November.6
Although the district court did not separately fault the March challengers for not
seeking to intervene between March 14 and March 17, that could not have been a proper
basis for denying intervention in any event. By the time the state board defendants
disclosed their ambivalence about appealing and their resolve not to expedite any appeal,
the district court had entered a permanent injunction that had been appealed to this Court.
At least after the March 11 notice of appeal was filed, the district court lacked jurisdiction
6 The district court attributed the notion that the state election defendants’ decision
not to seek appellate review was a foregone conclusion to the challengers themselves. But
that is not what the challengers argued: Rather, the challengers asserted that the state board
defendants’ post-injunction filing with this Court exposed the misalignment in the
respective interests. JA 530–31.

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to consider any new motion to intervene and it continued to lack such jurisdiction until our
limited remand on March 17 for the purpose of allowing it to consider such a motion. See
Doe v. Public Citizen, 749 F.3d 246, 258 (4th Cir. 2014) (“hold[ing] that an effective notice
of appeal divests a district court of jurisdiction to entertain an intervention motion”).
In addition to its erroneous determination that the March challengers’ motion to
intervene was untimely, the district court also exceeded the bounds of its discretion in
concluding that intervention would “prejudice” Representative Cawthorn by subjecting
him to “‘new’ arguments, unanticipated theories, and possible re-litigation of issues already
decided.” JA 752 (footnote omitted). By that point, the district court had already concluded
that the challengers’ arguments on the statutory issue added “little to nothing” to what the
state board defendants had already argued. JA 312. And to the extent our review of the
district court’s decision could be characterized as “re-litigation of issues already decided,”
that is part of the ordinary course of litigation rather than legally cognizable “prejudice.”
JA 752; see SAS Inst., Inc. v. World Programming, Ltd., 952 F.3d 513, 523 (4th Cir. 2020)
(“A district court abuses its discretion if it relies on an error of law[.]”) (quotation marks
omitted).
At this point, our general practice would be to remand for the district court to redo
the intervention analysis free from the previous errors. Under the circumstances, however,
we see no reason to do so. Now that the state board defendants’ time to appeal has elapsed,
there is no serious argument against permissive intervention. Ashton plainly has “a claim
or defense that shares with the main action a common question of law or fact,” and no party
currently represents that interest. Fed. R. Civ. P. 24(b)(1)(B). We therefore reverse the

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denial of intervention as to Ashton, clearing the way for us to address her appeal of the
district court’s underlying orders. See Wright & Miller, 15A Fed. Prac. & Proc. Juris.
§ 3902.1 (2d ed. 2022); Ross v. Marshall, 426 F.3d 745, 761 & n.68 (5th Cir. 2005).
III.
Although this appeal is properly before us, there remain three threshold issues to
consider before we may reach the merits of the district court’s analysis of the 1872
Amnesty Act.
A.
Because Representative Cawthorn was the plaintiff in the district court, we must
assure ourselves he had standing to bring this action in the first place. See Buscemi v. Bell,
964 F.3d 252, 258 (4th Cir. 2020).
Although the district court concluded that Representative Cawthorn had standing,
its analysis contained a significant gap. Recall that Representative Cawthorn brought
several distinct claims, including (as relevant here) that the challenge proceedings would
violate both the First Amendment and the 1872 Amnesty Act. The district court concluded
that Representative Cawthorn had standing based solely on an ostensible First Amendment
injury—namely, a burden on his right to run for office. But the court then granted relief on
an entirely different basis, specifically its conclusion that the challenge process would
violate the 1872 Amnesty Act.
That analysis missed a step. “[S]tanding is not dispensed in gross,” but must be
alleged and proven “for each claim” a plaintiff “seeks to press.” Town of Chester v. Laroe
Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted). Representative

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Cawthorn’s standing to pursue his First Amendment challenge thus did not necessarily
encompass standing to pursue a different claim based on the 1872 Amnesty Act.
All the same, we conclude that Representative Cawthorn has Article III standing to
pursue his 1872 Amnesty Act claim. In Representative Cawthorn’s view, that Act prohibits
not just a particular result—disqualifying him from the ballot—but also applying the
State’s challenge process to him in the first place. See JA 38 (“The Challenge Section, as
applied to Rep. Cawthorn under Section Three of the Fourteenth Amendment, violates [the
1872 Amnesty Act].”); accord Oral Arg. 45:20–45:32. There may be reason to question
that proposition because the Act’s text says nothing about the process for determining
whether a disability has been lifted. See p. 22, infra (quoting the full statute). But that
problem—if it exists—goes to the merits of Representative Cawthorn’s claim under the
1872 Amnesty Act rather than his standing to press it. Representative Cawthorn asserts an
existing injury-in-fact (being subjected to North Carolina’s challenge process) that is
directly traceable to what he claims is a violation of a particular law (the 1872 Amnesty
Act) and would be redressed by the requested relief (an injunction against the challenge
process going forward). Nothing more is needed to establish standing to sue. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
B.
We also conclude that the case’s current posture does not require us to rule on any
nonjusticiable political questions. “A controversy is nonjusticiable—i.e., involves a
political question—where there is” either “a textually demonstrable constitutional
commitment of the issue to a coordinate political department” or a “lack of judicially

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manageable standards” for resolving the issue. Nixon v. United States, 506 U.S. 224, 228
(1993) (quotation marks omitted). One of Representative Cawthorn’s claims is that
allowing the North Carolina board of elections to determine whether he is disqualified from
office under Section 3 of the Fourteenth Amendment would unconstitutionally trench upon
a power that has been textually committed to the House of Representatives—namely, its
authority to “be the Judge of the . . . Qualifications of its own Members” under Article I,
Section 5. If Representative Cawthorn is right about the meaning of Article 1, Section 5—
a question we do not reach—one may wonder whether the scope of the 1872 Amnesty Act
is also a nonjusticiable political question.
It is not. For one thing, resolving whether a particular “interpretation of [a]
statute”—here, the 1872 Amnesty Act— is correct represents a “familiar judicial exercise,”
one for which there is a superabundance of tools that federal judges employ every day.
Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). And the political question doctrine does
not excuse courts from performing their usual work “merely because the issues have
political implications.” Id. at 196 (quotation marks omitted).
Zivotofsky itself provides a good illustration. There, the D.C. Circuit refused to
adjudicate whether Congress could require the State Department to list a birthplace on a
passport as “Israel” when the person was born in Jerusalem. 566 U.S. at 193–94. The
Supreme Court reversed, faulting the court of appeals for refusing to adjudicate a
straightforward separation-of-powers question based on the generalized idea that the case
might involve “an area of decisionmaking” committed to another branch. Id. at 194–95
(quotation marks omitted). As the Court noted, “constitutional interpretation”—like

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statutory construction—involves “familiar principles” (such as “careful examination of the
textual, structural, and historical evidence put forward by the parties”) that are the bread-
and-butter of judicial work. Id. at 201.
If there is a political question here, then, it rests not on a lack of judicially
manageable standards but a “textually demonstrable constitutional commitment” of the
question to Congress. Nixon, 506 U.S. at 228. But the Supreme Court has already spoken
about the scope of any such commitment in Article I, Section 5, stating that that provision
“is at most a ‘textually demonstrable commitment’ to Congress to judge only the
qualifications expressly set forth in the Constitution.” Powell v. McCormack, 395 U.S. 486,
548 (1969) (emphasis added).7 The question currently before us, however, is not whether
Section 3 of the Fourteenth Amendment would (or would not) disqualify Representative
Cawthorn from future federal or state service, and this appeal cannot result in an order
declaring Representative Cawthorn constitutionally qualified (or unqualified) for further
service in the House of Representatives. Instead, the question before us is: Regardless of
whether Section 3 would otherwise disqualify Representative Cawthorn, does the 1872
Amnesty Act nevertheless authorize him to serve? And under Powell and Zivotofsky,
Representative Cawthorn’s effort to “vindicate” that alleged “statutory right” raises no
nonjusticiable political question. Zivotofsky, 566 U.S. at 195.
7 The Court specifically reserved whether the “disability” imposed by Section 3 of
the Fourteenth Amendment is a “Qualification” within the meaning of Article I, Section 5.
See Powell, 395 U.S. at 520 n.41. We assume without deciding that it is.

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C.
Representative Cawthorn also contends that the challengers lack “a private cause of
action” to raise Section 3 of the Fourteenth Amendment in federal court. Appellee Br. 26.
That gets things backwards. The challengers are not the plaintiffs in this suit,
Representative Cawthorn is. And it is the plaintiff—not the defendant—who must have a
cause of action to seek relief in federal court. Indeed, “once a case or controversy properly
comes before a court,” a defendant may raise federal defenses because “judges are bound
by federal law” and “may not hold a civil defendant liable” in violation of it. Armstrong v.
Exceptional Child Center, Inc., 575 U.S. 320, 326 (2015).8
IV.
Having cleared the procedural underbrush, we arrive at the merits of the district
court’s reading of the 1872 Amnesty Act. Reviewing the court’s interpretation de novo,
see, e.g., Fairfax v. CBS Corp., 2 F.4th 286, 296 (4th Cir. 2021), we conclude that it erred
in construing the Act as a sweeping removal of all future Fourteenth Amendment
disabilities.
8 To the extent there may be a lurking cause of action problem here, it involves
Representative Cawthorn, not the challengers. Although 42 U.S.C. § 1983 provides
Representative Cawthorn with a cause of action to pursue his various constitutional claims,
not all federal statutes may be enforced using that mechanism. See, e.g., Gonzaga Univ. v.
Doe, 536 U.S. 273, 283 (2002). For that reason, the challengers may (or may not) have had
an argument that Representative Cawthorn has no cause of action to pursue his claim that
the challenged proceedings would violate the 1872 Amnesty Act. Because the challengers
have not raised this point—and because it does not impact either our subject-matter
jurisdiction or that of the district court, see Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 n.4 (2014)—we do not further consider it.

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“We begin,” as always, “with the text.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163,
1169 (2021). And because the 1872 Act has the “merit of brevity,” Foster v. Goddard, 66
U.S. 506, 507 (1861), we quote it in full:
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled (two-thirds of each house concurring therein), That
all political disabilities imposed by the third section of the fourteenth article of
amendments of the Constitution of the United States are hereby removed from all
persons whomsoever, except Senators and Representatives of the thirty-sixth and
thirty-seventh Congresses, officers in the judicial, military, and naval service of the
United States, heads of departments, and foreign ministers of the United States.
17 Stat. 142.
The most fundamental problem with Representative Cawthorn’s proposed
interpretation is that the Act’s operative clause refers to those “political disabilities
imposed ” in the past tense rather than new disabilities that might arise in the future. The
past tense is “backward-looking”; it refers to things that have already happened, not those
yet to come. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Of course, we must
consider the text not just as a modern reader would but also its “plain meaning at the time
of enactment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020). But Representative Cawthorn
has not argued that this elementary rule of conjugation has changed in the last hundred and
fifty years—likely with good reason. Cf. Blair v. City of Chicago, 201 U.S. 400, 465 (1906)
(“This declaration is in the past tense, and can have no reference by any fair construction
to future engagements.”).
Representative Cawthorn ventures no direct rebuttal to this straightforward
principle of grammar. Instead, he notes that, as used in the 1872 Amnesty Act, “imposed”
functions as a “participle” because it occurs in an adjectival phrase modifying

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“disabilities.” Appellee Br. 30. True enough, but that is beside the point. As Representative
Cawthorn ultimately acknowledges, participles are a form of verbs—a form that comes in
both “past” and “present” varieties. Id. at 30 n.5; accord Webster’s Third International
1646 (Philip Babcock Gove ed., 2002) (defining “participle” as “a word having the
characteristics of both verb and adjective; esp: the English verbal adjective . . . that has the
function of an adjective and at the same time shows such verbal features as tense and voice
and capacity to take an object”). Here, Congress employed the past-tense version,
indicating its intent to lift only those disabilities that had by then been “imposed.”
Cf. Costello v. INS, 376 U.S. 120, 123–24 (1964) (referring to the past participle in “have
been” as a “use of the past tense” (quotation marks omitted)).
The operative clause’s principal verb—“removed”—reinforces this conclusion. In
the mid-nineteenth century, as today, that word generally connoted taking away something
that already exists rather than forestalling something yet to come. Dr. Webster’s Complete
Dictionary of the English Language 1116 (Chauncey A. Goodrich & Noah Porter, eds.,
1864) (defining “remove” when used as a verb: “To cause to change place; to move away
from the position occupied; to displace.” (emphasis added)).
Given all this, the district court’s focus on the 1872 Amnesty Act’s use of “all
persons whomsoever”—which formed nearly the entire basis for its ruling—was
misplaced. Without question, that phrase conveys broad action, and granting political
amnesty to nearly all ex-Confederates in one fell swoop surely was a remarkable act. But
the subject of the relevant sentence is the “disabilities” that are being “removed.” Thus, to
understand what Congress did, we must look to any phrases modifying those “disabilities.”

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And that, in turn, brings us back to where we began: the fact that Congress did not purport
to “remove[ ]” any disabilities that had not yet been “imposed.”
The Act’s history and context further confirm the point. The district court attributed
to the 1872 Congress a grand, structural purpose, specifically, a desire “to reserve [for
itself ] the right to decide whether one of its members has engaged in insurrection.” JA 492.
That atextual conjecture, however, suffers from at least two serious problems.
For one thing, it is not clear that the purpose hypothesized by the district court is
consistent with the text of the 1872 Amnesty Act. As its popular name suggests, that Act
provides—consistent with the grant of authority in Section 3 of the Fourteenth
Amendment—that “all political disabilities imposed by” that provision are “hereby
removed.” 17 Stat. 142 (emphasis added). Nothing in the Act’s text reserves to a future
Congress the “right to decide whether one of its members has engaged in insurrection.” JA
492. And once a given Congress has exercised its constitutional authority to lift a particular
disability, it is at minimum unclear on what basis a future Congress might later refuse to
seat a member on the theory that the previously rescinded disability nonetheless remains.
In any event, the district court cited no evidence that Congress had such a procedure
in mind when it voted for amnesty. To the contrary, the available evidence suggests that
the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the
then-pressing problems posed by the hordes of former Confederates seeking forgiveness.
See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36
Const. Comment. 87, 111–21 (2021). Those problems were partly logistical: Using
individual “private bills to remove Section Three disabilities” fostered “favoritism,” and

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the “thousands” of applications threatened to “overwhelm[]” Congress. Id. at 112; accord
Cong. Globe, 42d Cong., 2d Sess. 3253 (1872) (Senator Pratt) (“[T]he exclusion of these
men from office is a fruitful source of discontent . . . . These disabled people are constant
grumblers. They parade their griefs every day.”). But matters of principle were also at
stake, because President Grant and others argued that keeping large categories of people
out of office was ineffective in excluding noxious ideas if those ideas were held by a
majority of their constituents. See Magliocca at 115–16. And even though the debates over
amnesty occupy scores of pages in the Congressional Globe,9 neither the district court nor
Representative Cawthorn has cited any statement by any member of Congress referencing
the treatment of future insurrectionists.10
This historical context materializes in the 1872 Amnesty Act’s text through its
enumerated list of exceptions. Those exceptions—which carved out “Senators and
Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial,
military, and naval service of the United States, heads of departments, and foreign ministers
of the United States,” 17 Stat. 142—reflect Congress’s judgment that certain ex-
Confederates had been sufficiently wicked to warrant continued exclusion from public
office. See Magliocca at 120 (noting that, in 1872, “Section Three relief for [Jefferson]
9 See, e.g., Cong. Globe, 42d Cong., 2d Sess. 237–41, 245–49, 263–81, 381–91,
429–37, 487–97, 522–32, 585–90, 698–703, 705–07, 726–31, 758–67, 819–28, 842–48,
869–80, 891–902, 909–28, 1908–14, 3179–98, 3249–70, 3736–38 (1872).
10 A critical sticking point in congressional negotiations was whether amnesty
should be passed in conjunction with expanded civil rights protections for African
Americans. Magliocca at 117–21. Congress ultimately adopted amnesty as a standalone
measure. See id. at 119.

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Davis and the highest ex-Confederates was still deeply unpopular in the North”); see also
Cong. Globe, 42d Cong., 2d Sess. 7 (1871) (annual message to Congress of President
Grant) (“If there are any great criminals, distinguished above all others for the part they
took in opposition to the Government, they might, in the judgment of Congress, be
excluded from such an amnesty.”). 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.
Beyond its implausibility, Representative Cawthorn’s proposed interpretation of the
1872 Amnesty Act also would raise potentially difficult questions about the outer limits of
Congress’s power under Section 3 of the Fourteenth Amendment. That provision’s first
sentence prohibits further federal or state service by persons who “have engaged in” certain
activities, and its second sentence provides that Congress may “remove such disabilit[ies]”
by a two-thirds vote of each chamber. U.S. Const. amend. XIV, § 3. As noted previously,
the verb “remove” generally connotes taking away something that has already come into
being. See p. 23, supra. And even the President’s somewhat analogous pardon authority—
which the Supreme Court has called virtually “unlimited”—is generally understood to be
exercisable only “after [the] commission” of the offense in question. Ex parte Garland, 71
U.S. 333, 380 (1866) (emphasis added). If “serious constitutional doubts” can offer a
reason to prefer one of two “competing plausible interpretations of statutory text,” Clark
v. Martinez, 543 U.S. 371, 381 (2005), we certainly should not strain the text of the 1872
Amnesty Act to introduce such doubts when a clearly more plausible grammatical reading
avoids them entirely.

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The district court also briefly suggested that a subsequent amnesty removing
disabilities from certain high-ranking rebel officials who had not been covered by the 1872
Amnesty Act might bear on the question here. JA 510. That 1898 Act lifted, without
exception, any “disability . . . heretofore incurred” under Section 3. See Act of June 6,
1898, ch. 389, 30 Stat. 432.
Although that language perhaps even more clearly limits its effect to disabilities
“incurred” before its enactment, Congress’s choice of phrasing in 1898 sheds little light on
what a different Congress meant in 1872. As the Supreme Court has cautioned, subsequent
legislative practice is “a ‘particularly dangerous’ basis on which to rest an interpretation of
an existing law” adopted by an “earlier Congress.” Bostock v. Clayton County, 140 S. Ct.
1731, 1747 (2020). Such warnings are especially apt where, as here, the subsequent history
points in both directions. In 1919, for example, the House of Representatives voted to
exclude Victor Berger under Section 3 on the ground that, as a supporter of socialism who
had been convicted of violating the Espionage Act, he had given aid or comfort to
America’s enemies. See Clarence Cannon, 6 Cannon’s Precedents of the House of
Representatives of the United States 57–58 (2d ed. 1935). In so doing, the House rejected
the notion that the 1898 amnesty had absolved Berger, but not primarily based on its use
of “heretofore incurred.” Id. at 55. Instead, that phrase merely reflected the 1919
Congress’s view that “Congress in the very nature of things would not have the power to
remove any future disabilities.” Id. at 55 (quotation marks omitted) (emphasis added).
These breadcrumbs only reinforce why the text and context of the 1872 Amnesty
Act must be our principal guide. And, together, those features lead us to conclude that Act

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did not prospectively immunize Representative Cawthorn—or anyone else—from Section
3’s reach.
* * *
Because the district court’s ruling was based solely on its view of the 1872 Amnesty
Act, we reverse its decision and vacate the permanent injunction. See Grupo Mexicano de
Desarrollo S.A. v. Alliance Bond Fund, 527 U.S. 308, 314 (1999) (stating that an appeal
from a preliminary injunction “becomes moot” after entry of “a permanent injunction,
because the former merges into the latter”). The parties urge us to take up Representative
Cawthorn’s remaining arguments, but our usual course is to “remand for resolution of any
claims” a district court’s “error prevented [it] from addressing.” Zivotofsky, 566 U.S. at
201. The fact that the unresolved claims here involve weighty and unsettled constitutional
questions provides all the more reason to adhere to that sound practice.
A few words about what we have not decided. We express no opinion about whether
Representative Cawthorn in fact engaged in “insurrection or rebellion” or is otherwise
qualified to serve in Congress. We likewise do not consider whether Article I, Section 5 of
the Constitution reserves such determinations exclusively to the House of Representatives
or whether States may play any role in regulating ballot access based on constitutional
qualifications under the Time, Place, and Manner Clause of Article I, Section 4.
Cf. Roudebush v. Hartke, 405 U.S. 15, 24–26 (1972) (discussing that interaction). Nor do
we reach Representative Cawthorn’s Due Process and First Amendment claims. We hold
only that the 1872 Amnesty Act does not categorically exempt all future rebels and

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insurrectionists from the political disabilities that otherwise would be created by Section 3
of the Fourteenth Amendment. The judgment of the district court is therefore
REVERSED, VACATED,
AND REMANDED.

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WYNN, Circuit Judge, concurring:
I fully concur in Judge Heytens’s well-reasoned and persuasive majority opinion.
But Judge Richardson’s provocative and novel concurrence compels a correcting response.
To begin, the issue in this matter is not, as the concurrence indicates, “whether
Representative Cawthorn meets the requirements of” Section 3 of the Fourteenth
Amendment.1 Richardson Op. at 68. Instead, as the majority opinion ably explains, the
issue that we decide today—and the question that goes to the heart of the district court’s
permanent injunction—is a narrow one: does the 1872 Amnesty Act bar the State of North
Carolina from hearing a challenge to Representative Cawthorn’s candidacy for
congressional office based on Section 3? The answer is a resounding “no.”
But more concerningly, the concurrence broadly creates a flawed blueprint for
courts to stonewall the reasonable efforts of States to prevent frivolous candidates from
running for congressional office. Neither the Constitution, nor Supreme Court precedent,
nor common sense supports that irrational result.
1 The concurrence gets to this issue by framing its analysis in jurisdictional terms.
And in its view, the district court, by interpreting the scope of a federal statute—something
it is well-equipped to do—somehow ended up “impl[iedly]” “judging” Representative
Cawthorn’s “constitutional qualifications for office,” which it lacked jurisdiction to do.
Richardson Op. at 68–70 (emphasis added).
But the district court did no such thing. It did not assess whether Representative
Cawthorn had “engaged in insurrection or rebellion” against the United States, or whether
he had “given aid or comfort to the enemies thereof.” U.S. Const. amend. XIV, § 3. It did
not even determine whether Representative Cawthorn previously undertook an oath “to
support the Constitution.” Id. Instead, the court deliberately declined to do those things.
And even if it had wanted to, this case simply “cannot result in an order declaring
Representative Cawthorn constitutionally qualified (or unqualified) for further service in
the House of Representatives,” Majority Op. at 20, despite the concurring opinion’s
repeated statements to the contrary.

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I.
The concurrence proposes to interpret Article I, Section 5 to determine whether
federal courts have jurisdiction to judge a candidate’s constitutional qualifications. But
though the concurring opinion claims that it is not deciding whether the State of North
Carolina may judge a candidate’s constitutional qualifications—since that issue, we all
agree, “is not before this court yet,” id. at 69 n.22—the opinion is littered with broad
statements that apply its reasoning with full force to the States, see id. at 54 (“[O]nly
Congress—not the states, and not the courts—may judge the qualifications of members or
would-be members[.]” (emphasis added)). Indeed, the concurring opinion concludes that
“any attempt” by the States “to regulate candidates or ballot access for federal office” in
a substantive manner “is an implicit attempt to regulate the qualifications of members of
Congress, which is not allowed.” Id. (emphases added).
In other words, the concurrence believes that every State in the Union is completely
powerless to regulate candidates or ballot access. No court has ever held that view. Nor has
any court ever held that Article I, Section 5 prevents States from enacting eminently
reasonable measures to prevent twelve-year-olds or noncitizens, for example, from running
for congressional office. Yet that is precisely what the concurring opinion—as well as
counsel for Representative Cawthorn—argues the Constitution requires.
Because the premises underlying this conclusion are flawed as a matter of law and
common sense, I respectfully must disagree with my fine colleague who concurs
separately.

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A.
To start, the concurring opinion’s conclusion—that “only Congress—not the states,
and not the courts—may judge the qualifications of members or would-be members,” id.
(emphases added)—is textually flawed. Article I, Section 5 simply does not say that. To
the contrary, States have typically enjoyed broad powers to regulate candidates pursuant
to the Elections Clause.
1.
The text of Article I, Section 5, Clause 1 plainly reads: “Each House shall be the
Judge of the Elections, Returns and Qualifications of its own Members.” U.S. Const. art. I,
§ 5, cl. 1 (emphasis added). Nothing in the text of that clause says anything about
“candidates,” “prospective Members,” “would-be [M]embers,” and the like. See
Richardson Op. at 53–54. By its clear terms, it only applies to Congress’s “own
Members”—those individuals elected or appointed to our national legislative body.
If we can agree that Congress only possesses those powers enumerated in the
Constitution, then the Framers’ decision to refer to “Members” alone must mean that
Congress, by negative implication, lacks exclusive control to judge the qualifications of
nonmembers, including candidates. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 534 (2012) (“The enumeration of powers is also a limitation of powers, because ‘[t]he
enumeration presupposes something not enumerated.’” (quoting Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1, 195 (1824))); cf. Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco &
Explosives, 5 F.4th 407, 421 (4th Cir.) (Richardson, J.) (explaining that the Framers’
decision not to include an age restriction in the Second Amendment suggested that no such

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restriction existed), vacated as moot, 14 F.4th 322 (4th Cir. 2021). That result is
commanded by the text, plain and simple.
Instead of heeding the text, the concurrence employs a workaround syllogism to
reach a different result. That syllogism begins with the major premise that, pursuant to
Article I, Section 5, Congress possesses the exclusive power to judge the qualifications of
its members. Richardson Op. at 41–51. It then creates its own minor premise that there is
no “meaningful difference between candidates and ‘Members.’” Id. at 52–54. Having set
up that strawman, it casually concludes that Congress must possess exclusive power to
judge the qualifications of candidates.
That workaround syllogism cannot stand because even if we assume that the major
premise is sound,2 the minor premise is plainly invalid. That premise presupposes that the
Constitution was unartfully drafted, and that the Framers must have mistakenly omitted
“candidates” or “would-be Members” from Article I, Section 5. But it is well established
2 While the major premise—that Section 5 grants Congress the exclusive power to
judge the qualifications of its members—may seem uncontroversial, it is not quite as clear
as the concurring opinion makes it out to be. To start, the plain text of Article I, Section 5,
Clause 1 does not say that each House of Congress shall be the “sole” or “exclusive” judge
of its members’ qualifications. It only says “the Judge.” U.S. Const. art. I, § 5, cl. 1. As the
concurring opinion points out, “the” could be interpreted to mean “the particular Judge.”
Richardson Op. at 45 n.4 (emphasis added). But the Supreme Court has never squarely
adopted this reading. Id. at 44 n.3.
To be sure, at times the Court has suggested in dicta that Congress possesses the
“sole authority” to judge its members’ qualifications. See, e.g., Barry v. United States ex
rel. Cunningham, 279 U.S. 597, 619 (1929). But at other times it has said that Congress is
only entitled to the “final say in judging the qualifications of the representatives of any one
State,” not necessarily the only say. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804
(1995) (emphasis added); see also id. at 811 (noting that Article I, Section 5 vests Congress
with the “ultimate authority to judge a Member’s qualifications” (emphasis added)).

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that when judges construe the powers granted to the Federal Government by the
Constitution, we start by assuming that the Framers meant what they said. And if the
Framers expressly conferred “some powers” on Congress, but not others, we must conclude
those other powers have not been granted. Sebelius, 567 U.S. at 534; see also McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) (holding that Congress “can exercise only
the powers granted to it”).
To work around that established canon of constitutional construction, the concurring
opinion counters that even if the Constitution has not textually committed an exclusive
power over candidate qualifications to Congress, judges can nevertheless glean an implied
exclusive power over candidate qualifications from Supreme Court precedent. To wit, it
claims that in two cases—U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), and
Cook v. Gralike, 531 U.S. 510 (2001)—the Court has “twice refused to draw [a] line
between candidates and ‘Members.’” Richardson Op. at 52. Since these two categories are
coextensive, it reasons, the exclusive power granted to Congress to judge the qualifications
of its members must extend to candidates as well.
Not so. Thornton and Cook hardly establish that “candidates” and “Members” are
one and the same. Instead, these cases stand for the unremarkable proposition that States
cannot impose candidate qualifications that effectively add to the Constitution’s exclusive
list of membership qualifications. See Thornton, 514 U.S. at 836 (holding that “a state
amendment” regulating ballot access “is unconstitutional when it has the likely effect of
handicapping a class of candidates and has the sole purpose of creating additional
qualifications indirectly”); Cook, 531 U.S. at 525–26 (holding that a state ballot measure

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that indirectly added a new qualification was unconstitutional). Neither decision erases the
distinction between “candidates” and “Members.” And neither opinion holds that States
are completely powerless to police candidates using the qualifications in the Constitution.
2.
Given that neither the text of the Constitution nor Supreme Court precedent has
extended to Congress an exclusive power to regulate the qualifications of congressional
candidates, that should end our inquiry. But that outcome is also compelled by asking and
answering a different question: what power does the Constitution grant States to regulate
candidates?
The answer lies in the Elections Clause. That clause prescribes that “[t]he Times,
Places and Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. According
to well-settled law, this clause grants to the States “broad powers” to regulate elections.
Roudebush v. Hartke, 405 U.S. 15, 25 (1972). “It cannot be doubted” that these broad
powers “embrace authority to provide a complete code for congressional elections,”
including the power “to enact the numerous requirements as to procedure and safeguards
which experience shows are necessary in order to enforce the fundamental right involved.”
Smiley v. Holm, 285 U.S. 355, 366 (1932). Hence, the Supreme Court has “upheld generally
applicable and evenhanded [ballot-access] restrictions that protect the integrity and
reliability of the electoral process itself.” Anderson v. Celebrezze, 460 U.S. 780, 788 n.9
(1983).

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To be sure, at times the Court has seemed to suggest that the powers granted by the
Elections Clause are purely procedural. See, e.g., Thornton, 514 U.S. at 833 (noting that
“the Framers understood the Elections Clause as a grant of authority to issue procedural
regulations”). But for at least fifty years, the Supreme Court has repeatedly held that the
Elections Clause gives States the power to “protect the integrity of its political processes
from frivolous or fraudulent candidacies.” Storer v. Brown, 415 U.S. 724, 733 (1974)
(emphasis added) (quoting Bullock v. Carter, 405 U.S. 134, 145 (1972)); see also Thornton,
514 U.S. at 834 (same); Munro v. Socialist Workers Party, 479 U.S. 189, 194–95 (1986)
(“We have never required a State to make a particularized showing of the existence of voter
confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the
imposition of reasonable restrictions on ballot access.”).
In short, reading these precedents together, the Supreme Court indicates that
(1) States are empowered to weed out candidacies that lack merit (2) so long as, in doing
so, they do not impermissibly add to the Constitution’s exclusive list of membership
qualifications. See Thornton, 514 U.S. at 834. Therefore, because candidates who clearly
fail to satisfy the Constitution’s age, citizenship, or residency requirements3 (1) lack merit
and (2) can be turned away without adding to the qualifications for congressional
3 See U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall
not have attained to the Age of twenty five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of that State in which he
shall be chosen.”); id. § 3, cl. 3 (similar qualifications for Senators). I refer only to the
familiar three qualifications enumerated in Article I, Sections 2 and 3 because whether
Section 3 of the Fourteenth Amendment is a constitutional qualification remains an open
question. See Richardson Op. at 55.

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membership—since those three qualifications are in the Constitution itself, see U.S. Const.
art. I, § 2, cl. 2; id. § 3, cl. 3—there is no constitutional issue with States policing those
requirements.
At the end of the day—whether we ask how far Congress’s power extends under
Article I, Section 5, or whether we examine how far States’ powers extend under the
Elections Clause—we arrive at the same conclusion: to the extent Congress possesses the
power to judge the qualifications of candidates, that power is not exclusive.
B.
Finally, we must consider the common-sense meaning of Article I, Section 5. After
all, “[t]here is no war between the Constitution and common sense.” Mapp v. Ohio, 367
U.S. 643, 657 (1961).
If the concurring opinion is correct that “any attempt” by the States “to regulate
candidates or ballot access for federal office is an implicit attempt to regulate the
qualifications of members of Congress, which is not allowed,” Richardson Op. at 54
(emphasis added); see also id. at 54 n.10 (opining that state “ballot access” measures
“cannot be meaningfully distinguished from [unconstitutional] attempts to add
qualifications”), then every “state would be powerless to prevent” “fraudulent or
unqualified candidates such as minors, out-of-state residents, or foreign nationals” from
running for office. Greene v. Raffensperger, -- F.Supp.3d --, 2022 WL 1136729, at *27
(N.D. Ga. Apr. 18, 2022). It is hard to believe the State legislatures that ratified the
Constitution signed up for such a charade.

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For instance, under the concurring opinion’s reading of Article I, Section 5, States
would be powerless to judge or investigate whether someone even lives in the State they
are running in. The concurrence dismisses this as a “sky-is-falling argument.” Richardson
Op. at 50. But recent history reveals that it is all too real. See Stephanie McNeal,
Republican Candidate Running for Congress in 4 Different States, Fox News (Dec. 20,
2015), https://www.foxnews.com/politics/republican-candidate-running-for-congress-in-
4-different-states (describing one recent congressional candidate’s efforts to run in “his
home state of Georgia—as well as Michigan, Minnesota and Hawaii”) (saved as ECF
opinion attachment 2); see also Brian Slodysko & Tom Davies, Records: Trey
Hollingsworth Was Obligated to Live in 5 States, IndyStar (Nov. 2, 2016),
https://www.indystar.com/story/news/politics/2016/11/02/records-trey-hollingsworth-
obligated-live-states/93177642/ (reporting that a recent candidate for a U.S. House seat in
Indiana had filed legal documents that suggested he lived in Virginia, North and South
Carolina, Georgia, and Ohio, but not Indiana) (saved as ECF opinion attachment 3); Jacob
Pramuk, Dr. Oz Will Run for Pennsylvania’s Open Senate Seat as a Republican, CNBC
(Nov. 30, 2021), https://www.cnbc.com/2021/11/30/dr-oz-will-run-for-senate-in-
pennsylvania-as-a-republican.html (reporting that a candidate running for one of
Pennsylvania’s U.S. Senate seats has “lived in New Jersey for two decades” and only
recently registered to vote in the Keystone State—using “his in-laws’ address”) (saved as
ECF opinion attachment 4).
Furthermore, the concurring opinion’s interpretation of Article I, Section 5 would
also frustrate familiar principles of comity and federalism. See Younger v. Harris, 401 U.S.

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37, 44 (1971) (describing “Our Federalism” as a “system in which there is sensitivity to
the legitimate interests of both State and National Governments”). States undoubtedly have
a stake in ensuring that their interests and the interests of their citizens are represented by
qualified congressional candidates. Storer, 415 U.S. at 733 (recognizing “a State has an
interest, if not a duty, to protect the integrity of its political processes from frivolous or
fraudulent candidacies” (quoting Bullock, 405 U.S. at 145)). Surely, State governments are
at least as capable as Congress is of determining the age, citizenship, and residency status
of congressional candidates—if not more so.4
II.
In sum, the text of the Constitution does not grant Congress the exclusive power to
judge candidate qualifications. However, under the Elections Clause, the Constitution does
grant States broad powers to regulate candidates and ballot access.
And it stands to reason that as a matter of common sense, and as a matter of comity,
our Constitution permits States to have a say in regulating the candidates who seek to
represent their interests and the interests of their citizens.
4 The concurring opinion’s conclusion would mean that States would be powerless
to keep an out-of-state resident or a foreign national from being listed on their ballots as a
candidate for congressional office. Instead, the concurring opinion believes only Congress
is empowered to disqualify patently unqualified candidates from running for office. But it
is improbable to think that Congress would waste its time policing candidate qualifications.
That would leave congressional elections in legal limbo, with neither the States, nor the
courts, nor Congress able or willing to exercise control to weed out constitutionally
deficient candidates until after the election occurs. That is the sort of electoral “chaos” that
the Supreme Court has repeatedly held States are constitutionally empowered to mitigate.
Storer, 415 U.S. at 730.

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RICHARDSON, Circuit Judge, concurring in the judgment:
Like the majority, I agree that the district court erred. But in my view, the error was
not in the court’s resolution of the merits of the injunction, but with its jurisdiction to
proceed on the statutory claim at all. In its order, the district court purported to determine
the meaning of the 1872 Amnesty Act, ch. 193, 17 Stat. 142, as applied to Representative
Madison Cawthorn. That order judged Representative Cawthorn’s qualifications for
office. But under Article I, section 5, clause 1 of the Constitution, the House “shall be the
Judge of the Elections, Returns and Qualifications of its own Members.” The House of
Representatives here is not just a judge, it “is the sole judge of the qualifications of its
members.” Jones v. Montague, 194 U.S. 147, 153 (1904) (emphasis added). So the district
court did not have jurisdiction to consider Representative Cawthorn’s claim under the 1872
Amnesty Act, which ultimately asked the court to determine his qualifications, a privilege
and duty given only to the House itself.
To reach that conclusion, I work through four premises. I start by explaining that
Art. I, § 5, cl. 1 of the Constitution is a jurisdictional bar on a federal court’s power to
determine the qualifications of a member of Congress. Then I explain how, under Supreme
Court precedent, there is no meaningful distinction between judging a member’s
qualifications and pre-judging a candidate’s qualifications. Next, I show why Section 3 of
the Fourteenth Amendment is one of the “Qualifications” of membership in the House of
Representatives, under the meaning of Art. I, § 5, cl. 1. Those premises together show that
courts have no jurisdiction to “judge” a candidate’s qualifications under § 3. From there,
I conclude by showing why the district court’s interpretation of the 1872 Amnesty Act as

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applied to Representative Cawthorn amounts to a judging of his § 3 qualification. Taken
together, these premises prove that the district court had no jurisdiction to proceed on
Representative Cawthorn’s claim under the 1872 Amnesty Act. While I respect the district
court’s hesitation to decide core constitutional questions and rely on a statutory ground,
that choice was unavailable because the Constitution leaves this question—how the 1872
Amnesty Act applies to Representative Cawthorn’s qualifications for office—to the House
of Representatives alone.1
I. Article I, § 5, cl. 1 is a jurisdictional restriction
Courts have an independent responsibility to determine whether they have subject-
matter jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). So while the
parties have not raised whether the district court had subject-matter jurisdiction over the
1872 Amnesty Act claim, we must ourselves make that determination. And I believe that
the district court lacked such jurisdiction. I start here by explaining why Art. I, § 5, cl. 1
of the Constitution inhibits federal-court jurisdiction in general and then move on to
whether this case and its issues fall into that bar.
Jurisdiction is a court’s “statutory or constitutional power to adjudicate the case.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). The outlines of jurisdiction
1 I do not object to the majority’s decision to remand to the district court. The lower
court has not resolved the First and Fourteenth Amendment claims, nor has it resolved the
claim that North Carolina’s review of federal congressional candidates violates Art. I, § 5,
cl. 1. I recognize the implications of my arguments for Representative Cawthorn’s claim
under Art. I, § 5, cl. 1. But that claim is not yet before us. So implications aside, the district
court should have a chance to answer all remaining questions—including any effect the
primary results might have on this case—in the first instance.

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determine the subject matter of cases and the classes of litigants that a court can entertain.
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61 (2010). By making each House of
Congress “the Judge” of the qualifications of its own members, the Constitution divests
federal courts of any power to determine congressional qualifications, displacing a federal
court’s default power over federal questions. That conclusion can be reached in two ways:
either by treating this as a so-called political question or by applying more mundane
principles of interpretation.
First, the political-question doctrine. Like other justiciability doctrines, the
political-question doctrine sometimes takes on different forms. One, which could be called
the prudential-political-question doctrine, is something like an abstention doctrine. Under
that form, courts avoid deciding issues with significant political implications. But the issue
here is something different. It is a jurisdictional form of the political-question doctrine. It
does not implicate the prudence of our deciding a case, but our very power to do so.2
2 In Baker v. Carr, 369 U.S. 186, 217 (1962), the Court laid out a list of six ways in
which the political-question doctrine might arise. I focus here on the first way, the
“textually demonstrable commitment” of the issue to another branch, because it is the most
relevant here, is the most important, and is the least controverted. See Vieth v. Jubelirer,
541 U.S. 267, 278 (2004) (plurality).
With Baker in mind, one more clarification is helpful. As I just suggested, the
political-question doctrine is sometimes thought of as a prudential or a quasi-prudential
doctrine. But that view of the doctrine has largely been advocated in concurrences and
dissents, at least since Baker. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189,
212 (2012) (Breyer, J., dissenting); Nixon v. United States, 506 U.S. 224, 253 (1993)
(Souter, J., concurring); Goldwater v. Carter, 444 U.S. 996, 1000 (1979) (Powell, J.,
concurring). In other words, the prudential version of the doctrine is a perennial loser. It
is true that in Baker’s six-factor formulation of the political-question doctrine the last four
factors are at least partly prudential. See 369 U.S. at 217 (looking to things like policy
determination, respect, and embarrassment). But in the years since Baker, the Supreme
(continued)

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While it is, of course, the role of courts to say what the law is, sometimes “the law
is that the judicial department has no business entertaining the claim . . . because the
question is entrusted to one of the political branches.” Vieth v. Jubelirer, 541 U.S. 267, 277
(2004) (plurality). That is, in essence, the version of the political-question doctrine at issue
here. This doctrine is a “narrow exception” to the general rule that courts should decide
cases properly before them. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195
(2012). While narrow, it is an exception with a proud history. In Marbury v. Madison,
Chief Justice Marshall evoked the doctrine, asking whether the delivery or withholding of
a commission was “a mere political act, belonging to the executive department alone, for
the performance of which, entire confidence is placed by our constitution in the supreme
executive; and for any misconduct respecting which, the injured individual has no remedy.”
5 U.S. (Cranch) 137, 164 (1803).
Under this version of the political-question doctrine, a court lacks jurisdiction over
an issue when there is “a textually demonstrable commitment of the issue to a coordinate
political department.” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v.
Court has summarized the doctrine without a reference to those prudential factors at all.
See, e.g., Zivotofsky, 566 U.S. at 195 (mentioning only “textually demonstrable
commitments” of issues and “a lack of judicially discoverable and manageable standards”);
cf. Powell v. McCormack, 395 U.S. 486, 518–48 (1969) (spending 30 pages on the
“textually demonstrable commitment” factor and two paragraphs on the other political
question factors). It is possible any prudential application of the doctrine is dead letter.
But however much of the prudential aspect of the political-question doctrine has survived,
I refer here only to the firm, Article-III heart of that doctrine that deals with core questions
of justiciability and the courts’ very competence to hear and decide issues. See Powell,
395 U.S. at 518 (grounding the doctrine in separation of powers concerns); see also Rucho
v. Common Cause, 139 S. Ct. 2484, 2494 (2019).

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Carr, 369 U.S. 186, 217 (1962)). In layman’s terms, the political-question doctrine says
that when the Constitution gives exclusive power over an issue to another branch of
government, courts are deprived of their jurisdiction to decide that issue. To figure out
whether a power is textually committed to another branch of the government, “we must
interpret the Constitution,” Powell v. McCormack, 395 U.S. 486, 519 (1969), and
determine whether the issue is exclusively given to another branch of the American
government.3
3 The Supreme Court has strongly hinted that the actual judging of qualifications is
a political question. Take Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613,
616 (1929). In that case, the Supreme Court described each House’s Art. I, § 5, cl. 1 power
as “judicial in character,” including the power to “render a judgment which is beyond the
authority of any other tribunal to review.” This is a strong hint that Congress’s power
displaces our own power as federal courts. Add this to the voluminous Supreme Court
dicta suggesting the Houses are the exclusive judges and my conclusion seems even more
in line with the thrust of the Court’s precedent. See, e.g., Powell, 395 U.S. at 548 (“[W]e
have concluded that Art. I, § 5, is at most a ‘textually demonstrable commitment’ to
Congress to judge only the qualifications expressly set forth in the Constitution.”); see also
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804 (1995) (“The text of the Constitution
thus gives the representatives of all the people the final say in judging the qualifications of
the representatives of any one State.”); id. at 811 (“Art. I, § 5, vests a federal tribunal with
ultimate authority to judge a Member’s qualifications . . . .”); Jones, 194 U.S. at 153 (The
House of Representatives “is the sole judge of the qualifications of its members.”); Barry,
279 U.S. at 619 (“The Senate, having sole authority under the Constitution to judge of the
elections, returns and qualifications of its members” exercises “the full, original, and
unqualified power by the Constitution.”); Reed v. Cnty. Comm’rs, 277 U.S. 376, 388 (1928)
(noting that the Senate “is the judge of the elections, returns, and qualifications of its
members” and is “fully empowered”); Powell, 395 U.S. at 552 (Douglas, J., concurring)
(“Contests may arise over whether an elected official meets the ‘qualifications’ of the
Constitution, in which event the House is the sole judge.”); Baker, 369 U.S. at 242 n.2
(Douglas, J., concurring) (“Of course each House of Congress, not the Court, is ‘the judge
of the elections, returns, and qualifications of its own members.’”). We have sometimes
suggested that we are bound by on-point Supreme Court dicta. See Yanez-Marquez v.
Lynch, 789 F.3d 434, 450 (4th Cir. 2015). But whether these statements are binding will
not matter to my analysis. I proceed with the question from first principles and reach the
same conclusion as these cases.

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Start with an easy example of a textually demonstrable commitment: The
Constitution says that “the Senate shall have the sole Power to try all Impeachments.” Art.
I, § 3, cl. 6. That commitment is clear as a bell. This “textually demonstrable commitment”
to the Senate deprives federal courts of jurisdiction. See Nixon, 506 U.S. at 228–29.
Federal courts have no power to try impeachments. I believe the same is true of Art. I, § 5,
cl. 1, which says that “each House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members.”4
In my view, Art. I, § 5, cl. 1 is one of the rare instances, like the Impeachment
Clause, where the Constitution really does say, in black and white, that an issue is reserved
for another branch and that branch alone. In the words of then-Judge Scalia, “[i]t is difficult
to imagine a clearer case of ‘textually demonstrable constitutional commitment’ of an issue
4 Maybe the Impeachment Clause is different because it uses the word “sole” while
Art. I, § 5, cl. 1 does not. See Nixon, 506 U.S. at 229 (“[T]he word ‘sole’ indicates that
this authority is reposed in the Senate and nowhere else.”). But I don’t believe so. The
phrase “sole Power” is used twice in the Constitution, at Art. I, § 2, cl. 5 and at Art. I, § 3,
cl. 6. The first time, the Constitution explains that the House of Representatives shall have
“the sole Power of Impeachment.” Art. I, § 2, cl.5. The second time, the Constitution
explains that the Senate shall have “the sole Power to try all Impeachments.” Art. I, § 3,
cl. 6. This mirroring makes sense: One House of Congress is given the full power to start
impeachment proceedings, and the other House is given the full power to finish them. The
word “sole” makes that division of labor clear. On the other hand, the clause we focus on
says “each House shall be the Judge of the Elections, Returns and Qualifications.” Art. I,
§ 5, cl. 1. This reference has no partner; it stands alone. It simply states who “the Judge”
will be. The article “the” meant at the Founding what it means now: “the article noting a
particular thing.” Samuel Johnson, A Dictionary of the English Language (3d ed. 1768).
So saying “the Judge” in this clause means “the particular Judge,” in other words, the only
judge. That exclusivity is clear enough without the word “sole.” And if that were unclear,
the Supreme Court has repeatedly stated Congress is the “sole judge” of such
qualifications. See Thornton, 514 U.S. at 816 (quoting 17 Annals of Congress 871 (1807));
Jones, 194 U.S. at 153.

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to another branch of government to the exclusion of the courts than the language of Article
I, section 5, clause 1 that ‘each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members.’” Morgan v. United States, 801 F.2d 445, 447 (D.C.
Cir. 1986); see also Nixon, 506 U.S. at 240 (White, J., concurring) (suggesting that this is
the clearest example of such a textually demonstrable commitment). By committing the
power to judge qualifications of members to each House of Congress, the Constitution
thereby takes away our power as federal judges to judge a member’s qualification. In other
words, we lack jurisdiction.
My interpretation of Art. I, § 5, cl. 1 as jurisdictional is fully in line with the
Founding-era understanding of legislative independence. “Each house is made the sole
judge of the election, return, and qualifications of its members. The same power is vested
in the British house of commons, and in the legislatures of the several states; and there is
no other body known to the constitution to which such a power might safely be trusted.”
1 James Kent, Commentaries on American Law 220 (1826) (emphasis added); see also
William Rawle, A View of the Constitution of the United States of America 42 (1825)
(“ Both the senate and house of representatives possess the usual powers to judge of the
elections, returns and qualifications of their own members.” (emphasis added)) . So
commonplace was the idea that a legislature should police its own returns and
qualifications that there was little debate over the fact that each House was made the judge
of its own issues. See Charles Warren, The Making of the Constitution 419 (2d ed. 1937)
(describing the addition of the clause, with only questions about what qualifications would

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be included and nothing about the sole power of judging them).5 As then-Judge Scalia
summarized his survey of the early history, “[i]n almost two centuries of numerous election
contests resolved by the House and Senate, beginning in the very first Congress, no court,
5 In prescribing only those few, necessary qualifications, the Constitution otherwise
guaranteed “the natural right of all men to chose whom they please . . . to represent and
advocate their interests.” 17 Annals of Congress 873 (1807) (Rep. William Findley). As
James Madison explained:
The qualifications of the elected being less carefully and properly defined by
the State Constitutions, and being at the same time more susceptible of
uniformity, have been very properly considered and regulated by the
Convention. A representative of the United States must be of the age of
twenty-five years; must have been seven years a citizen of the United States,
must at the time of his election, be an inhabitant of the State he is to represent,
and during the time of his service must be in no office under the United
States. Under these reasonable limitations, the door of this part of the Federal
Government, is open to merit of every description, whether native or
adoptive, whether young or old, and without regard to poverty or wealth, or
to any particular profession of religious faith.
The Federalist No. 52 (James Madison); see also The Federalist No. 57 (James Madison)
(“The electors are to be the great body of the people of the United States. They are to be
the same who exercise the right in every State of electing the corresponding branch of the
legislature of the State. Who are to be the objects of popular choice? Every citizen whose
merit may recommend him to the esteem and confidence of his country.”); The Federalist
No. 60 (Alexander Hamilton) (“The truth is, that there is no method of securing to the rich
the preference apprehended, but by prescribing qualifications of property either for those
who may elect or be elected. But this forms no part of the power to be conferred upon the
national government. Its authority would be expressly restricted to the regulation of the
times, the places, and the manner of elections. The qualifications of the persons who may
choose or be chosen, as has been remarked upon other occasions, are defined and fixed in
the Constitution, and are unalterable by the legislature.”); 4 The Complete Anti-Federalist
184–85 (A Republican Federalist, no. 6) (Feb. 2, 1788) (Storing, Herbert J. ed., 1981)
(expressing concern that the limited qualifications would permit foreigners to be elected).

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as far as we are aware, has ever undertaken to review the legislative judgment or (until the
present litigation) even been asked to do so.” Morgan, 801 F.2d at 447–48.6
As James Madison wrote, “Each house is, as it necessarily must be, the judge of the
elections, qualifications, and returns of its members.” The Federalist No. 53 (emphasis
added); see also 4 The Complete Anti-Federalist 142 (Cornelius) (Dec. 18, 1787) (“By this
Federal Constitution, each House is to be the judge, not only of the elections, and returns,
but also of the qualifications of its members; and that, without any other rule than such as
they themselves may prescribe.”). Article I, § 5, cl. 1 grants each House the exclusive
power to judge its members and their elections to ensure that Congress is not beholden to
the states, the executive, or the courts. As Justice Joseph Story explains in volume II of
Commentaries on the Constitution of the United States:
It is obvious, that a power must be lodged somewhere to judge of the
elections, returns, and qualifications of the members of each house
composing the legislature; for otherwise there could be no certainty, as to
who were legitimately chosen members, and any intruder, or usurper, might
claim a seat, and thus trample upon the rights, and privileges, and liberties of
the people. Indeed, elections would become, under such circumstances, a
mere mockery; and legislation the exercise of sovereignty by any self-
constituted body. The only possible question on such a subject is, as to the
body, in which such a power shall be lodged. If lodged in any other, than the
legislative body itself, its independence, its purity, and even its existence and
action may be destroyed, or put into imminent danger. No other body, but
itself, can have the same motives to preserve and perpetuate these attributes;
no other body can be so perpetually watchful to guard its own rights and
privileges from infringement, to purify and vindicate its own character, and
to preserve the rights, and sustain the free choice of its constituents.
Accordingly, the power has always been lodged in the legislative body by
the uniform practice of England and America.
6 For the early history, see generally M. St. Clair Clarke & David Hall, Cases of
Contested Elections in Congress, From the Year 1789 to 1834, Inclusive (1834).

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§ 831 (1833). These core separation-of-powers concerns only bolster my understanding
that Art. I, § 5, cl. 1 takes away the courts’ jurisdiction.7
Rather than view this question through the political-question doctrine, we might
instead just reach for familiar principles of interpretation to determine whether the Art. I,
§ 5, cl. 1 acts as a bar to our jurisdiction. In the statutory context, we look to whether a
requirement speaks clearly and in “jurisdictional terms.” See Arbaugh, 546 U.S. at 515. If
there is clear indication that some language goes to a court’s jurisdiction—i.e., their very
power to adjudicate—then the bar is jurisdictional. And again, I agree with then-Judge
Scalia that it is hard to imagine a clearer bar on our jurisdiction that doesn’t out-and-out
say, “no jurisdiction here.” Morgan, 801 F.2d at 447. Article I, § 5, cl. 1 says that each
House “shall be the judge” of the qualifications of members. Art. I, § 5, cl. 1 (emphasis
added). “The exclusion of others—and in particular of others who are judges—could not
be more evident.” Morgan, 801 F.2d at 447; see also McIntyre v. Fallahay, 766 F.2d 1078,
1081 (7th Cir. 1985) (Easterbrook, J.) (“The House is not only ‘Judge’ but also final
7 “In keeping with the fundamental principle prohibiting judicial encroachment
upon the functions of the legislature, judicial usurpation of legislative power, and judicial
interference with the exercise of legislative power, it is well settled that such a
constitutional provision [i.e., Art. I, § 5, cl. 1] vests in the legislature the sole and exclusive
power to judge the election and qualifications of its own members and deprives the courts
of jurisdiction to determine these matters.” Note, The Legislature’s Power To Judge the
Qualifications of Its Members, 19 Vand. L. Rev. 1410, 1410 (1966); see also Paul E.
Salamanca & James E. Keller, The Legislative Privilege to Judge the Qualifications,
Elections, and Returns of Members, 95 Ky. L.J. 241, 254–76 (2006–2007) (tracing the
legislative prerogative in seating members from 16th-century England to the American
colonies and state constitutions).

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arbiter.”). Article I, § 5, cl. 1 uses clear language and speaks in jurisdictional terms, so its
bar on our power is jurisdictional.
The challengers have raised a pragmatic argument against the House’s sole power
to judge its members’ qualifications. The argument is best summarized with a borrowed
hypothetical: “What of the ‘obviously’ unqualified candidate? What if someone sought to
put a pet dog on the ballot—or a corporation?” Derek T. Muller, Scrutinizing Federal
Electoral Qualifications, 90 Ind. L.J. 559, 598 (2015). The challengers argue that it makes
no sense to leave this question to Congress because that would lead to chaos. I doubt their
prediction. North Carolina, for instance, has measures in place that prohibit unaffiliated
candidates from getting on the ballot without a petition bearing signatures representing
1.5% of the registered voters in the state. See N.C. Gen. Stat. § 163-122(a); see also
Buscemi v. Bell, 964 F.3d 252, 257 (4th Cir. 2020) (“An unaffiliated candidate in a
districtwide election, including an election for the United States House of Representatives,
must collect the signatures of at least 1.5% ‘of the total number of registered voters in the
district.’” (citing § 163-122(a)(2)). That example shows why the sky-is-falling argument
is unpersuasive here, but it also exemplifies the states’ proper role in federal elections.
Laws that require an initial showing to weed out frivolous or unsupported candidates are
laws that properly deal with the “Manner” of elections—with procedure and not substance.
See Storer v. Brown, 415 U.S. 724, 733 (1974). That would be a way to ensure that
elections were limited to “major struggles,” id. at 735, without allowing a state or the courts
to unjustifiably judge the substance of a candidacy.

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Either through the political-question doctrine or as a simple matter of reading the
text of the Constitution, a court lacks jurisdiction to judge the qualifications of a member
of Congress. See Sevilla v. Elizalde, 112 F.2d 29, 38 (D.C. Cir. 1940) (“We are cited to no
cases, and we find none, in which the Federal courts have even been asked to determine
the qualifications of a member of Congress.”). Article I, § 5, cl. 1 of the Constitution is a
jurisdictional bar on a federal court’s power.8
Now I must move on to whether this case and its issues are covered by that bar.9 If
§ 3 of the Fourteenth Amendment is not a “Qualification,” then any jurisdictional limitation
in Article I would not have barred the district court from answering whether the 1872
Amnesty Act prospectively lifted a disqualification from office. But first, I address
whether Art. I, § 5, cl. 1 covers candidates to office as well as “Members” of Congress.
8 The challengers have pointed to a similar case ongoing in Georgia that came out
their way. Greene v. Raffensperger, No. 22-cv-1294, 2022 WL 1136729, at *26–28 (N.D.
Ga. Apr. 18, 2022). There the Northern District of Georgia held that “states have the power
to exclude from the ballot constitutionally unqualified or ineligible candidates.” Id. at *26.
In essence, the court found that this is not an issue left only for the House. Citing cases
from the Ninth and Tenth Circuit, the court found that states can keep unqualified
candidates off the ballot, for instance a “twenty-seven-year-old who was constitutionally
ineligible to become president because of her age.” Id. (citing Lindsay v. Bowen, 750 F.3d
1061, 1064 (9th Cir. 2014) and Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir.
2012) (Gorsuch, J.) (unpublished)). But respectfully, Greene misses the mark. The two
cases it cites dealt with presidential qualifications. The Constitution does not have an
analogous clause that submits exclusive jurisdiction over presidential qualifications to any
branch. So those cases are simply not relevant.
9 Under Powell, courts may determine “the existence and scope of the textual
commitment to the House to judge the qualifications of members,” 395 U.S. at 519 n.40,
without intruding on Congress’s sole authority to judge those qualifications. We may
determine the meaning of the Constitution—e.g., what counts as a qualification and who
may judge them—without having anything to say about who fits or does not fit those
qualifications.

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II. Article I, § 5, cl. 1 covers candidates as well as “Members”
The district court purported to determine how the 1872 Amnesty Act applied to
Representative Cawthorn’s qualifications for office in his capacity as a candidate. But
Art. I, § 5, cl. 1 speaks of “Members.” If there were a meaningful difference between
candidates and “Members” on this point, any jurisdictional bar in Art. I, § 5, cl. 1 would
not apply here. But the Supreme Court has twice refused to draw that line between
candidates and “Members.” In U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) and in
Cook v. Gralike, 531 U.S. 510 (2001), the Supreme Court struck down attempts by states
to substantively affect election outcomes by leveraging power over candidates’ ballot
access. These cases show that Art. I, § 5, cl. 1 forbids judging the qualifications of
candidates for congressional office, just the same as it forbids the judging of “Members.”
Start with Thornton. There, the Supreme Court struck down a term limit for getting
on the ballot in Arkansas, and throughout the opinion the Court described the law as a
requirement for “candidates” and “ballot access” but found that Art. I, § 5, cl. 1 applied all
the same. See 514 U.S. at 782, 788. The provision at issue said that anyone beyond the
term limit “shall not be certified as a candidate and shall not be eligible to have his/her
name placed on the ballot for election to the United States Senate from Arkansas.” Id. at
784. Arkansas argued that this was not about qualifications for membership but really a
permissible Times, Places, and Manner regulation under Art. I, § 4, cl. 1. Id. at 828. It
insisted that this provision was only about ballot access and that incumbents could still win
through write-in campaigns; therefore, the provision did not fall into Art. I, § 5, cl. 1’s
“absolute bar.” The Court rejected that argument: “In our view, Amendment 73 is an

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indirect attempt to accomplish what the Constitution prohibits Arkansas from
accomplishing directly.” Id. at 829. “Allowing States to evade the Qualification Clauses
by dressing eligibility to stand for Congress in ballot access clothing trivializes the basic
principles of our democracy that underlie those Clauses.” Id. at 831 (cleaned up). Those
same principles apply here. An attempt to pre-judge the qualifications of a candidate to
get on the ballot is just dressing up a judging of congressional membership qualifications
in “ballot access clothing.” Candidates are, after all, really only prospective Members;
that’s the whole idea.
The Supreme Court in Cook repeats the same principle, only louder. Cook dealt
with a state rule that asked candidates to pledge to work tirelessly for a federal
constitutional amendment to create congressional term limits and, if they refused, the ballot
would list in big, bold letters next to their name “DISREGARDED VOTERS’
INSTRUCTION ON TERM LIMITS.” 531 U.S. at 514. The Court found even this to be
an attempt to substantively affect the election, which tried to add a kind of a qualification,
and which was more than procedural. Even where the states only tried to tinker with the
white space around a candidate’s name on the ballot, such a rule was enough to offend
Art. I, § 5, cl. 1 because it tried to affect the substance of the election. Id. at 525–26. States
cannot “attempt to dictate electoral outcomes” by leveraging their procedural power over

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the ballot. Id. (cleaned up). Similarly, states cannot “attempt to dictate electoral outcomes”
by pre-judging a candidate’s qualifications for office.10
The thrust of Cook and Thornton is that any attempt to regulate candidates or ballot
access for federal office is an implicit attempt to regulate the qualifications of members of
Congress, which is not allowed. And judging the qualifications of candidates is
substantive. Although neither Thornton nor Cook deals directly with the “judging” of
qualifications, this case is naturally covered by their principles. Just like the states in
Thornton and Cook could not intrude on the respective Houses’ prerogative to judge their
own members’ qualifications by regulating candidates or ballot access, a federal court
cannot intrude on the House of Representatives’ prerogative to judge its own members just
because the specific question at hand deals with ballot access for a candidate.
Because only Congress—not the states, and not the courts—may judge the
qualifications of members or would-be members, the next issue is whether § 3 of the
Fourteenth Amendment is a “Qualification” under Art. I, § 5, cl. 1.
10 When taking a broader historical perspective, it makes sense that the Court found
that ballot access cannot be meaningfully distinguished from attempts to add qualifications.
Ballots were not used in the United States until the late 19th century, about 20 years after
the Fourteenth Amendment was ratified. See Derek T. Muller, Ballot Speech, 58 Ariz. L.
Rev. 693, 697 (2016). For the first century of our country, the States had no means to
nudge the vote in this way. So it makes sense that the Court was skeptical of any use of
that innovation to justify a state’s unprecedented power to shape the electorate’s actual
choices about who to vote for. Because the ballot, like the primary, has been “made an
integral part of the election machinery,” it is subject to the Constitution’s laws about
elections. See United States v. Classic, 313 U.S. 299, 318 (1941).

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III. Section Three of the Fourteenth Amendment is a “Qualification”
Section 3 of the Fourteenth Amendment is a constitutional qualification for
membership in the House of Representatives as revealed by the text, structure, and history
of that section. Although the Supreme Court has suggested that § 3 may be a qualification,
it has not outright said so. Consequently, this is a matter of first impression.
To start, the qualifications for each House of Congress are “fixed and exclusive”
and must be based in the text of the Constitution. Thornton, 514 U.S. at 790. So as an
initial matter, it is important that qualifications be found in the text of the Constitution
itself, which § 3 of course is. While the Supreme Court is clear that qualifications must be
found in the constitutional text, the Court has not provided a full catalogue of the
constitutional provisions that count. Neither is there a self-identifying list of qualifications
in the Constitution. Instead, one must comb through the Constitution. While it is natural
to think of the canonical trio of age, citizenship, and residency as the whole story, see Art.
I, § 2, cl. 2 (House of Representatives); Art. I, § 3, cl. 3 (Senate), those aren’t the only
qualifications in the Constitution.
Take the most obvious example: Article I, § 3, cl. 7 says that “Judgment in Cases
of Impeachment shall not extend further than to removal from Office, and disqualification
to hold and enjoy any Office of honor, Trust or Profit under the United States . . . .”
(emphasis added).11 That requirement naturally falls into the “Qualifications” category of
11 To be clear, it appears accepted that Members of Congress are not civil officers
subject to impeachment. See David P. Currie, Constitution in Congress: The Federalist
Period: 1789–1801, at 275–281 (1997) (noting that the impeachment proceedings of
(continued)

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Art. I, § 5, cl. 1; it even uses the word disqualification.12 And that is not the only other
provision that reads like a qualification. Other possibilities include: a prohibition on
concurrent officeholding, Art. I, § 6 cl. 2 (“No Senator or Representative shall, during the
Time for which he was elected, be appointed to any civil Office under the Authority of the
United States . . . .”); an oath-taking requirement, Art. VI, cl. 3 (“The Senators and
Representatives . . . shall be bound by Oath or Affirmation, to support this Constitution.”);
and possibly even the Guaranty Clause, which might require that Senators or
Representatives be elected by states with a “Republican Form of Government,” Art. IV,
§ 4. Each of these has been at least contemplated by the Supreme Court. See Thornton,
514 U.S. at 787 n.2; Powell, 395 U.S. at 521 n.41.13
Senator Blount in 1797–98 is commonly cited as having established that members of
Congress are not “officers of the United States” for impeachment under Art. II, § 4). Even
so, it appears that an officer who is impeached from some other office—say a federal
judgeship—may be disqualified from becoming a member of Congress later. Compare
Art. II, § 4 (discussing “[t]he President, Vice President and all civil Officers”), with Art. I,
§ 3, cl. 7 (explaining how punishment for impeachment can include disqualification from
“any Office of honor, Trust or Profit under the United States”).
12 I see no reason to distinguish between qualifications and disqualifications,
especially since the canonical trio are also stated in the negative as well. See, e.g., Art. I,
§ 2, cl. 2 (“No person shall be a Representative who shall not have attained to the Age of
twenty five Years . . . .”). The Powell court agrees with my basic assessment that positive
or negative phrasing should not resolve the status of a qualification. See 395 U.S. at 539
n.73. And as I explain below, I think that the repeated negative phrasing in the Constitution
is a sign that the drafters of § 3 were trying to mimic the qualifications in Art. I, §§ 2, 3.
That phrasing may illuminate the meaning of the words, even if it isn’t necessary to create
a qualification.
13 While it may seem strange at first to see qualifications spread throughout the
Constitution instead of grouped together, one explanation is that there are diverging
qualifications for different offices, which are sometimes but only sometimes overlapping.
The House of Representatives has a list unique to it, Art. I, § 2, cl. 2, just as the Senate
does, Art. I, § 3, cl. 3. The impeachment disqualification applies not just to Congress but
(continued)

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That brings us back to § 3 of the Fourteenth Amendment. Its status as a qualification
is also an open question, as it has been mentioned by the Supreme Court as a possible
qualification, but the Court has never decided for sure. See Thornton, 514 U.S. at 787 n.2;
Powell, 395 U.S. at 521 n.41.14 The Supreme Court’s suggestion, in both Thornton and
Powell, that § 3 is a strong candidate for being a qualification gives some support to my
conclusion here. But for all this discussion, neither precedent nor explicit text has
ultimately decided whether § 3 is a “Qualification.” So 153 years after the ratification of
the Fourteenth Amendment, I must turn to text, structure, and history.
The first thing to notice is the phrasing of the commonly-agreed-upon qualifications.
“No Person shall be a Representative who shall not . . .” is how Art. I, § 2, cl. 2 starts the
list of qualifications for the House, including age, citizenship, and residency; Art. I, § 3,
cl. 3—the one about Senators—starts the same way, “No person shall be a Senator who
shall not . . . .” And § 3 of the Fourteenth Amendment uses the very same introduction:
“No person shall be a Senator or a Representative in Congress . . . who . . . .” This phrasing
reads like intentional repetition. And the same language should suggest the same meaning.
If age and citizenship are qualifications, and if § 3 is phrased just like the age and
citizenship qualifications, that is strong evidence that § 3 is itself a qualification.
to “any Office of honor, Trust or Profit,” Art. I, § 3, cl. 7, so it is naturally set off. The
Fourteenth Amendment was added later, so it too is set off. Taking the wide view, there is
little surprise that the qualifications are spread throughout the document.
14 Powell does at one point refer to “the three standing qualifications set forth in the
Constitution.” 395 U.S. at 520. But that phrase is in the sentence which ends in a footnote
where the Court then raises and reserves whether § 3 of the Fourteenth Amendment is a
qualification under Art. I, § 5, cl. 1. Id. at 520 n.41. So in context, that phrase does not
foreclose § 3 from being a qualification.

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There is also reason to believe that this negative formulation was an important
signal. The first draft of Art. I, § 2, cl. 2 at the Constitutional Convention reads: “Every
member of the House of Representatives shall be of the age of twenty five years at least;
shall have been a citizen of (in) the United States for at least three years before his election;
and shall be, at the time of his election, a resident of the State in which he shall be chosen.”
Powell, 395 U.S. at 537. This is a list of positive qualifications, not disqualifications. But
then the Committee of Style flipped that language to the “No person shall” formulation that
was ultimately adopted. Id. The earlier English practice, recounted in Blackstone, was to
describe parliamentary qualifications in the negative, as “standing incapacities” on the
ability to serve in Parliament. Id. at 537–38 (citing 1 W. Blackstone, Commentaries *175–
76). That the drafters at the Founding and the drafters of the Fourteenth Amendment both
used a deliberate negative formulation of the qualifications, which mimicked an earlier
English practice, is even more evidence that § 3 was meant as a qualification.15
Beyond the repetition of phrasing, the very meaning of the word “qualification”
supports my understanding. Founding-era dictionaries suggest that “qualification” means
then what it did during the passage of the Fourteenth Amendment and what it does now—
15 The Powell Court rejected an argument along these lines, but for different reasons.
In Powell, the Court rejected the idea that the link to Blackstone somehow incorporated
Blackstone’s other arguments about the inherent legislative ability to exclude members for
general unfitness. 395 U.S. at 538. The Powell Court rightly held that the change from
the positive to negative phrasing was done by the Committee of Style, who lacked the
authority to change the substance of the Constitution. Id. at 538–39. I am not arguing that
this negative phrasing is necessary or sufficient to making a constitutional qualification.
My point is much less grandiose. I only suggest that the negative phrasing, used in
Blackstone, used by the Committee of Style, and then copied verbatim by § 3, is a sign that
those clauses should be read together. The same words should evoke the same meaning.

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“that which makes any person or thing fit for any thing.” Samuel Johnson, A Dictionary of
the English Language (3d ed. 1768); see also Thomas Dyche & William Pardon, A New
General English Dictionary (13th ed. 1768) (“something that enables or empowers a
person to do that which otherwise he could not”); Joseph E. Worcester, Dictionary of the
English Language (1860) (“That which qualifies or fits any person or thing for any use or
purpose, as an office . . .”); Black’s Law Dictionary (8th ed. 2004) (“the possession of
qualities or properties . . . inherently or legally necessary to make one eligible for a position
or office . . .”). The qualifications for membership to the House of Representatives, then,
are all those things in the text of the Constitution, Thornton, 514 U.S. at 790, that make a
person fit or unfit for the office. Qualifications are all those boxes that must be checked
before a member may take office, and § 3 of Fourteenth Amendment naturally reads as box
to be checked before a member may take office. “No person shall be a Senator or
Representative in Congress . . . who, having previously taken an oath, as a member of
Congress . . . shall have engaged in insurrection or rebellion . . . .” U.S. Const. amend. XIV,
§ 3. The section is naturally read as a thing that makes someone fit or unfit for office, so
it falls within the natural meaning of “qualification.” Between the natural meaning of
“qualification” and the repetition of the phrasing of the canonical qualifications, the text
and structure of the Constitution make clear that § 3 of the Fourteenth Amendment is a
“Qualification” under the meaning of Art. I, § 5, cl. 1.

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Now from the text and structure to the historical backdrop. Because no cases
expound on § 3, we must look elsewhere to understand it.16 There is a reasonable amount
16 There are two cases from the 19th century that might, at first blush, illuminate the
meaning and application of § 3, but in the end, they are too confused and confusing to help
much. Both cases were presided over by Chief Justice of the United States Salmon P.
Chase, but only while he was riding circuit in Virginia. See Gerard N. Magliocca, Amnesty
and Section Three of the Fourteenth Amendment, 36 Const. Comm. 87, 100–08 (2021).
The first case was the treason trial of Jefferson Davis. Davis’s defense team made the
astonishing argument that, because § 3 of the Fourteenth Amendment was a punishment
and not a qualification, he could not be convicted for treason under the Fifth Amendment’s
prohibition on double jeopardy. Dwight J. Davis, The Legal Travails of Jefferson Davis,
23 J.S. Legal Hist. 27, 73 (2015). Strangely, it was Chief Justice Chase himself who
suggested the idea to Davis’s defense team, as it would allow a procedural ruling that might
“save Chase from making a decision on the question of whether or not secession is treason.”
C. Ellen Connally, The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial
of Jefferson Davis, 42 Akron L. Rev. 1165, 1196 (2009). While Andrew Johnson’s pardon
of Davis eventually mooted the case, Chief Justice Chase went on the record anyway. He
agreed with the defendant’s argument that § 3 was a punishment and that “it executes
itself.” In re Davis, 7 F. Cas. 63, 90 (C.C.D. Va. 1871). “THE CHIEF JUSTICE instructed
the reporter to record him as having been of opinion on the disagreement, that the
indictment should be quashed, and all further proceedings barred by the effect of the
fourteenth amendment to the constitution of the United States.” Id. at 102.
A holding that § 3 was a punishment might cut against my interpretation. But in
another case around the same time Chase found “that the text was not self-executing in
Virginia and—in the absence of congressional action—did not apply to a Black criminal
defendant there.” Magliocca, supra, at 88. In In re Griffin, a Black prisoner sought habeas
relief, arguing that his conviction was void because the sitting judge had been an
insurrectionist. Chase again suggested that “exclusion from office [w]as a punishment,”
In re Griffin, 11 F. Cas. 9, 26 (C.C.D. Va. 1869), but this time he found that § 3 was not
self-executing, a reversal from his opinion in Davis. Id. at 26 (“these can only be provided
for by congress”).
These contradictory holdings, just a few years apart, draw both cases into question
and make it hard to trust Chase’s interpretation. It might seem that Chase was motivated
by Confederate sympathies or some sort of prejudice, as he twisted § 3 one way to help
arch-Confederate Jefferson Davis and then twisted it the other to ratify decisions by a
former-Confederate judge. But that is probably not right. Chase was appointed by Lincoln
and “was one of America’s greatest antislavery lawyers, and his record refutes any
inference of racial animus.” Magliocca, supra, at 106. A more likely motive was that
Chase was against § 3 for pragmatic reasons. Apparently, Chase had worked vigorously
(continued)

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of history from congressional practice working through the meaning and application of § 3.
That practice reinforces my conclusion that § 3 is a qualification. I admit that the Supreme
Court has not always found congressional practice to be authoritative, see Powell, 395 U.S.
at 546 (“Had these congressional exclusion precedents been more consistent, their
precedential value still would be quite limited.”), and I too would never use it as more than
supporting evidence. But Congress has acted as if § 3 was a qualification for seating
members for more than a century, and that is some evidence for my reading. See Jack
Maskell, Cong. Rsch. Serv., Qualifications of Members of Congress 18–20 (2015).
Let’s begin with an Act of July 2, 1862, ch. 127, 12 Stat. 502, which attempted by
statute to require that “every person elected or appointed to any office . . . under the
government of the United States, shall, before entering upon the duties of such office” take
an oath that they have never taken up arms against the government. In short, Congress
tried to add a qualification through statute, one that looked a lot like what § 3 would
become. And there were a few exclusions done in the name of this statute between the end
of the Civil War and the passage of the Fourteenth Amendment. See Miles S. Lynch,
Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30
to keep § 3 out of the Fourteenth Amendment, fearing that it “was too harsh on former
Confederate officials,” making reunification harder. Connally, supra, at 1196 (citing John
Niven, Salmon P. Chase: A Biography 409 (1995)). Whatever Chief Justice Chase’s
reasons, I do not take either Davis or Griffin for much useful background about whether
§ 3 was a qualification. Because he was acting as a circuit judge, his opinions are not
binding on us. So these opinions are only useful as persuasive authority or as evidence of
contemporary understanding. Between the shifting legal conclusions, Chase’s pragmatic
political concerns, and the obvious conflicts of interest, I do not take his discussion as much
evidence of broader contemporary understanding. As for persuasiveness, it is unclear to
me why the disqualification theory and the punishment theory are mutually exclusive.

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Wm. & Mary Bill Rts. J. 153, 196–200 (2021). In early 1868, months before the Fourteenth
Amendment was ratified but about two years after it passed Congress, there were
expulsions under the statute but debate about whether this was an unconstitutional
expansion of the set list of constitutional qualifications. During debate, some House
members argued that “the attempt in the act of July 2, 1862, to impose another qualification
was in direct conflict with the terms of the original pact.” 1 Hind’s Precedents of the House
of Representatives ch. 14, § 449, at 446 (1907). On the other side of the argument, there
was worried discussion about the effects of a limited list of qualifications—Confederates
might have to be seated, after all. Id. at 447. But in the end, the House excluded some
Kentucky rebels under the statute anyway, constitutional worries or not. Under modern
precedent, that exclusion would be unconstitutional, done as it was just before the
ratification of the Fourteenth Amendment and under only statutory authority. Lynch,
supra, at 198 & n.304 (citing Powell, 395 U.S. 486). But still, this is an example, just a
few months before § 3 was ratified by the states, of Congress debating the validity of a
statutory disqualification about to become enshrined in the Fourteenth Amendment. That
historical backdrop suggests that § 3 was meant to be treated as a disqualification, enforced
by Congress before seating members.17
17 Of course, our modern understanding that the constitutional qualifications are
fixed in the text of the Constitution was not decided until about 100 years later in Powell.
In the 19th century, there was debate on the matter, so it would have made practical sense
to pass an 1862 statute requiring a no-insurrection qualification and then also try to add
that qualification to the constitutional text in the Fourteenth Amendment to make it harder
to undo later.

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And in the first few years after the Fourteenth Amendment’s ratification, both the
House of Representatives and the Senate considered excluding elected members using § 3
as the vehicle. In 1869, John M. Rice was challenged as “disloyal” under § 3. 1 Hind’s,
supra, ch. 14, § 460, at 472. Under the customary House practice, Rice was sworn and
conditionally seated, while his qualifications were determined. A majority of the House
committee that adjudicated his case found the following: “Resolved, That the Hon. John
M. Rice is disqualified by the third section of the fourteenth amendment to the Constitution
of the United States from holding a seat in Congress.” Id. at 473. A minority of the
committee disagreed with that factual finding, and when the full House debated the
question, they overruled the majority’s factual finding and seated Rice. No matter the
outcome, the House was asking whether Rice was disqualified under § 3.
In 1870, another § 3 question arose around Member-elect Lewis McKenzie. Id.
§ 462, at 476. It was alleged that McKenzie “was guilty of acts in the early part of the year
1861 which made him ineligible under the third section of the fourteenth article of
amendments to the Constitution.” Id. Lewis was a member of the Virginia legislature
before the war and had generally supported “unit[ing] her destiny with the slaveholding
States of the South.” Lynch, supra, at 207 (quoting 1 Hind’s, supra, ch. 14, § 462, at 477).
But Virginia had not yet entered the war when those comments were made, so the
committee ultimately found that McKenzie was not ineligible under § 3. 1 Hind’s, supra,
ch. 14, § 462, at 477–78. Again, the House viewed § 3 as an issue of eligibility for office.
The Senate, on the other hand, did more than consider using § 3: They actually
excluded a member-elect based on it. “Zebulon B. Vance was the wartime Governor of

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North Carolina” and he was elected to the Senate in 1870. Gerard N. Magliocca, Amnesty
and Section Three of the Fourteenth Amendment, 36 Const. Comm. 87, 110 (2021). He
won the seat from “a former brigadier general in the Union army and steadfast Republican”
named Joseph C. Abbott. Anne M. Butler & Wendy Wolff, U.S. Senate Hist. Off., United
States Senate: Election, Expulsion and Censure Cases 1793–1990, at 166 (1995). Abbott
challenged Vance’s qualifications under § 3, and he made that challenge in the Senate.
Vance had served in Congress before joining in North Carolina’s efforts in the Civil War,
subjecting him to the disabilities of § 3. Id. (citing James G. Blaine, Twenty Years of
Congress: From Lincoln to Garfield 531 n.1 (1886)). The inquiry apparently lasted a
whole year. Id. Eventually the Senate refused to seat Vance, “and after fruitless efforts to
have his disabilities removed, he resigned.” Clement Dowd, Life of Zebulon B. Vance 218
(1897). Vance eventually did have his § 3 disability removed and was seated in Congress
in 1879 where he served until his death. Magliocca, supra, at 111 n.126.18 But the Vance
saga proves that “the Senate accepted the premise that, if it chose, it could have removed
the disabilities of Zebulon Vance after his election, a procedure that had been followed for
officials elected by several other southern states.” Butler & Wolff, supra, at 169.
In the early 20th century, Congress twice dealt with § 3 issues surrounding a
socialist candidate from Wisconsin named Victor L. Berger. Berger was an avowed
18 Interestingly, Vance served in the Thirty-fifth and Thirty-sixth Congresses. So
he could not have received the general amnesty from the 1872 Amnesty Act, which
specifically excluded amnesty for members of that Thirty-sixth Congress. See 17 Stat. at
142. I have been unable to find how Vance received that congressional removal of his
disability.

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socialist who was twice kept from taking his seat in the House of Representatives during
the Red Scare. Edward J. Muzik, Victor L. Berger: Congress and the Red Scare, 47 Wisc.
Mag. of Hist., no. 4, 1964, at 309–18. Berger was elected to the House of Representatives
in 1918 in Wisconsin’s Fifth District, but he was convicted of conspiracy to obstruct the
country’s efforts during the Great War just a few months later in January 1919. Id. at 310.
When Berger presented himself to be seated in May 1919, another member challenged his
right to be seated, which led to a trial in the House of his eligibility under § 3.19
During those debates, a House Report noted the following: “[T]here is a fourth
qualification prescribed by the Constitution, or rather a fourth prohibition, as the
qualifications set forth in the Constitution are put in negative form . . . Section 3 of the
fourteenth amendment to the Constitution.” 6 Cannon’s Precedents of the House of
Representatives ch. 157, § 56, at 55. In that discussion, there was disagreement about when
Congress can exclude members for reasons beyond the textual disqualifications in the
Constitution (remember, Powell is still fifty years away), but that Congress grounded their
decision to exclude Berger in the text of the Constitution:
While there has in the past been some opposition on the part of a small
minority to the well established practice of the House of Representatives in
excluding unfit persons from membership on the ground that the House has
no right to add to the qualifications prescribed in the Constitution, in the
present case it is perfectly plain that under the Constitution itself, if the House
is satisfied that Representative-elect Berger did give aid or comfort to the
enemies of the United States, he is ineligible to a seat in this House, and it is
not only the right but the constitutional duty of the House to exclude him.
19 Berger made some of the very same arguments that Representative Cawthorn
made to the district court here, that some 19th century congressional enactments had
removed the § 3 disability prospectively. Muzik, supra, at 312.

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Id. ch. 157, § 57, at 58.
Berger was disqualified by a vote of 311 to 1. Lynch, supra, at 210. A special
election was called, Berger won that special election, and again, Berger was denied his seat
by Congress. Id.20 Years later, Berger’s criminal conviction was overturned by the
Supreme Court. Berger v. United States, 255 U.S. 22, 36 (1921). So he ran yet again, won
yet again, and was curiously seated by Congress in 1922 with no fuss and without a
resolution removing the disability. Lynch, supra, at 213.
These congressional debates are messy. I don’t mean to suggest otherwise. The
members of these Congresses disagreed and often vigorously so. See, e.g., H.R. Rep. 43-
484, at 12 (1874) (views of minority) (“No other qualifications are prescribed in the
Constitution,” other than age, citizenship, and residency.). And as the Powell Court said,
congressional practice is “limited” in its precedential value. 395 U.S. at 546. But against
this congressional practice, the challengers have not cited, nor have I found, any example
of a prior court purporting to determine the § 3 qualifications of a Member of Congress.
That historical imbalance tracks my understanding that § 3 is a political question about the
qualifications of Members-elect for office: “Each House”—and only each House—“shall
be the Judge of Elections, Returns and Qualifications of its own Members.” Art. I, § 5,
cl. 1 (emphasis added). At the very least, I take this congressional practice as some
20 Wisconsin put Berger on the ballot again, even though he had previously been
excluded from Congress under § 3.

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persuasive authority that other constitutional interpreters have looked at the text, context,
and history of the Constitution and reached the same conclusion as I have here.21
Section 3 of the Fourteenth Amendment is a constitutional qualification for
members of Congress. Thus, a federal court has no jurisdiction to determine a member’s
qualifications under § 3.
IV. The district court’s interpretation of the 1872 Amnesty Act was a “judging” of
Representative Cawthorn’s qualifications
To this point, I have shown that Art. I, § 5, cl. 1 of the Constitution deprives courts
of jurisdiction to judge a candidate’s qualifications for office under § 3 of the Fourteenth
Amendment. To complete the circle of my argument, I now explain why the district court’s
opinion interpreting the meaning of the 1872 Amnesty Act as applied to Representative
Cawthorn was necessarily a judging of his qualifications that falls into the jurisdictional
restriction in Art. I, § 5, cl. 1.
21 The challengers have argued here that it would be odd for Congress to be the sole
arbiter of the § 3 issue when Congress readmitted North Carolina to the Union after the
Civil War by an Act explicitly requiring the State to exclude insurrectionists from office.
See An Act to admit the States of North Carolina, South Carolina, Louisiana, Georgia,
Alabama, and Florida, to Representation in Congress, ch. 70, § 3, 15 Stat. 73, at 74 (June
25, 1868). That Act reads: “[N]o person prohibited from holding office under the United
States, or under any State, by section three of the proposed amendment to the Constitution
of the United States, known as article fourteen, shall be deemed eligible to any office in
either of said States, unless relieved from disability as provided in said amendment.” The
challengers suggest that it would be strange for Congress to be the sole judge of the
qualifications of candidates for office when it required North Carolina to hold
insurrectionists ineligible for office. But this argument will not do. The Act focuses on
state offices—“any office in either of said States”—not federal offices. So it would be
strange to read this language about what states can do with their comptrollers and their
sheriffs as evidence that Congress somehow intended to give up the power to determine
the qualifications its own membership. Elephants and mouseholes.

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Representative Cawthorn’s claims under the 1872 Amnesty Act fall into the “scope
of the textual commitment to the House to judge the qualifications of members.” Powell,
395 U.S. at 519 n.40. In the words of Justice Douglas, this is a “contest . . . over whether
an elected official meets the ‘qualifications’ of the Constitution.” Id. at 552 (Douglas, J.,
concurring). The parties are contesting whether Representative Cawthorn meets the
requirements of § 3 and that contest is covered by Art. I, § 5, cl. 1’s commitment of this
issue to the House. Admittedly, this issue is complicated by the fact that Representative
Cawthorn called on the district court to interpret a statute, the 1872 Amnesty Act. He has
not outright asked the district court to declare him qualified under § 3. See Maj. Op. 20.
But the inevitable effect of any interpretation of the 1872 Amnesty Act here is to say what
Representative Cawthorn’s qualifications are, which amounts to an impermissible
“judging” under Art. I, § 5, cl. 1.
It’s useful to start by looking at what the district court did here. The district court’s
opinion determines the category of people benefited by the 1872 Amnesty Act and
determines that Representative Cawthorn is among that group. The opinion then outlines
potential exceptions from the benefit and determines that Representative Cawthorn does
not fit those exceptions. And the opinion ends by concluding that the state board cannot
“determine Plaintiff’s qualifications” because the 1872 Amnesty Act has already answered
that question, implying that the question of Cawthorn’s qualifications has been definitively
answered by the Act. In doing all that, the court “determine[d] facts and appl[ied] the
appropriate rules of law,” Barry, 279 U.S. at 613, a classic act of judging. All that

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amounted to a judging of Representative Cawthorn’s qualifications under § 3, which falls
into the jurisdictional bar of Art. I, § 5, cl. 1.
With that said, the district court did what courts do around the country every day—
interpret a statute. As the majority rightly says, statutory interpretation is the “bread-and-
butter of judicial work.” Maj. Op. 20. And in Zivotofsky, the Supreme Court held that
deciding whether one party’s interpretation of the statute is correct “is a familiar judicial
exercise,” that is less likely to be displaced by the political-question doctrine. 566 U.S. at
196. Deciding whether a statute is constitutional is also right in the judiciary’s wheelhouse.
Id. When a court is being asked to decide a question of interpretation—even where that
question interacts with or otherwise affects a political question—the court is usually not
deprived of jurisdiction. I concede that is true in the mine run of cases, but it is not true
here.
“[I]n order to evaluate whether a case presents a political question, a court must first
identify with precision the issue it is being asked to decide.” Id. at 208–09 (Sotomayor, J.,
concurring). Precise framing of the question is crucial to determining whether something
is inside or outside the area reserved for the sole jurisdiction of the designated political
branch. If the question is simply whether a statute is constitutional, courts will not be
barred from answering that familiar question.22 But as Justice Sotomayor lays out in her
22 To reiterate, I do not decide whether Representative Cawthorn’s challenge to the
constitutionality of North Carolina’s statutory structure under Art. I, § 5, cl. 1 is a political
question. Count III is not before this court yet. The determination of whether North
Carolina’s statutory scheme violates Art. I, § 5, cl. 1 has not yet been addressed by the
district court and may well be within the power of federal courts. See Powell, 395 U.S. at
(continued)

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Zivotofsky concurrence, a “statute could give rise to a political question.” Id. She offers a
hypothetical statute “purporting to award financial relief to those improperly ‘tried’ of
impeachment offenses.” Id. at 209. That statute would ask courts to answer the very
political question the Supreme Court refused to answer in Nixon: what “try” means in the
Impeachment Clause. So while statutory claims are less likely to raise political questions,
they are not exempt from the doctrine.
With full understanding that examples of the political-question doctrine are rare and
that the doctrine’s application to a statute is even rarer, the 1872 Amnesty Act is that rare
case that requires a court to resolve a political question—the qualifications of the members
of Congress. As I have said, any attempt by the district court or by this court to determine
the effect of the Act as applied to Representative Cawthorn would have to be a judging of
his constitutional qualifications for office. All the Act does is purport to remove the § 3
disability from a certain group of people; it is the real-life example of Justice Sotomayor’s
hypothetical, a statute that codifies a political question committed to Congress. And
Representative Cawthorn is asking the district court to determine the effect of that Act on
his qualifications. Representative Cawthorn is not asking the court to consider the
constitutionality of the statute as in Zivotofsky; he asks the court to say what the Act means
for him. See Compl.17 (“the 1872 Act removed the ability to apply Section Three to Rep.
Cawthorn”). Nor does Representative Cawthorn ask the Court to determine whether the
Act somehow changed the list of constitutional qualifications. See id. at 16 (conceding that
519 n.40. I only discuss the narrow question of whether the district court may judge
Representative Cawthorn’s qualifications by way of interpreting the 1872 Amnesty Act.

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the 1872 Amnesty Act did not “repeal” § 3). Representative Cawthorn’s Complaint instead
argues that the 1872 Amnesty Act “removed the ability to apply Section Three” to him. Id.
at 17. Resolving the meaning of the Act for Representative Cawthorn’s case would require
us to determine whether any § 3 disability has been removed from him, which reaches
beyond our jurisdiction into a political question, statutory interpretation or not.
As above, it also helps to take a step back and consider this issue under more
mundane jurisdictional principles. It is, in fact, not that rare for a statute itself to provide
a “textually demonstrable commitment” of an issue to another branch through something
like a jurisdiction-stripping provision. When Congress itself says in a statute that courts
have no jurisdiction over some question committed to another branch, that means we don’t
have jurisdiction, even when the question would involve statutory interpretation. See, e.g.,
Patel v. Garland, No. 20-979, 2022 WL 1528346 (U.S. May 16, 2022) (discussing 8 U.S.C.
§ 1252(a)(2)(B)(i), which takes away federal courts’ jurisdiction to review the executive’s
factual determinations in relief-from-removal proceedings under § 1255). The Zivotofsky
court is surely right that it is rarer for a court to be deprived of jurisdiction to interpret a
statute when the bar on jurisdiction comes from outside the statute and instead from the
Constitution. The Constitution seldom deprives federal courts of the ability to hear federal
questions. But this case is just such an example. The Act here directly invokes the last
sentence of § 3 of the Fourteenth Amendment, an area which is, as I have explained, left
for the sole review of each House of Congress. Beyond simply referencing § 3, the Act
quotes the language of § 3, it notes that it has met the appropriate vote threshold required
by § 3 (“two-thirds of each house concurring therein”), and it calls itself “An Act to remove

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the political Disabilities imposed by the fourteenth Article of the Amendments of the
Constitution of the United States.” 17 Stat. 142. Representative Cawthorn asks us to
answer a question over which only the House of Representatives has jurisdiction, the
qualifications of a House Member.
The majority makes one other argument along these lines that needs answering. The
majority tries to split up the issues: “the question before us is: Regardless of whether
Section 3 would otherwise disqualify Representative Cawthorn, does the 1872 Amnesty
Act nevertheless authorize him to serve?” Maj. Op. 20. Perhaps there are two separable
issues here—disqualification under § 3 and, as the majority puts it, authorization to serve
under the Act. But that can’t be. Judging whether the Act “nevertheless authorize[s] him
to serve” is by definition judging his qualifications. Determining whether a disqualification
was later removed is no less a judging than determining whether the disqualification
attached in the first place. And anyway, the “authorization” framing muddles the issue.
By the express terms of § 3, there are two ways to avoid disqualification: (1) don’t rebel
or give comfort to the enemy in the first place or, if you can’t manage that, (2) get Congress
to vote by a 2/3 majority to remove your disability. The only thing that could “nevertheless
authorize him to serve” is if Congress had removed the disability—in other words if he had
satisfied one of the possible ways to meet the § 3 requirement. That is a determination for
Congress to make, and for Congress alone to make. Not us. Not the district court.
* * *
The only actor in our American constitutional system that can judge the
qualifications of members of the House of Representatives is the House of Representatives

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itself. That restriction restrains the jurisdiction of federal courts—the very power of the
courts to consider the question. The judging of congressional qualifications—or the
qualification of candidates—is a political question committed exclusively to each House
of Congress. This court cannot do it. The district court cannot do it. Only the appropriate
House of Congress can. Section 3 of the Fourteenth Amendment lays out one such
qualification. When pulled together, these principles deprive courts of jurisdiction over
the question here.
When the district court here tried to determine the effect of the 1872 Amnesty Act
on Representative Cawthorn’s qualification for access to the ballot, the attempt amounted
to a judging of his qualifications for office. The district court had no jurisdiction to make
that call. Therefore, I would vacate the lower court’s injunction and remand for further
proceedings on Representative Cawthorn’s remaining claims.

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