Some private plaintiffs have sued to try to exclude Representative Madison Cawthorn from the North Carolina congressional ballot on the grounds that he engaged in “engaged in insurrection or rebellion,” which disqualifies him from office under the Fourteenth Amendment. As the North Carolina State Board of Elections prepares to hear the challenge in short order, I’m skeptical the state has the power to exclude congressional candidates from the ballot.

I wrote earlier about excluding presidential candidates from the ballot on the basis that they lacked the qualifications for federal office. I believe states may, but not must, exclude candidates. The state legislature’s power to “direct” the “manner” of appointing electors, I think, extends to some qualifications determinations. Many states don’t have rules like this, and many ineligible candidates have appeared on the ballot, as that post detailed. Nevertheless, I think it’s within the state’s power to exclude, if it had a statute to that effect.

The same is not true, in my judgment, for congressional candidates. I detail the reasons for this difference in Scrutinizing Federal Electoral Qualifications. As the Constitution provides, “Each House shall be the judge of the elections, returns and qualifications of its own members . . . .” There are instances where Congress’s judgment of qualifications–was a candidate an “inhabitant” of the state or a mere “transient,” how should Congress handle an underage candidate who will come of age after the congressional term starts, etc.–may differ from how a state or a court might determine them. And it is the right of the people to choose their representatives unimpeded by ex ante state determinations–even the right to choose someone the people know or suspect is not qualified for office. I draw a line from Roudebush v. Hartke, a 1972 Supreme Court case emphasizing that recounts in a state were okay, as long as they did not thwart Congress’s role in being the “judge” of its elections at the end of the day. A state’s determination that a candidate is not qualified thwarts that role.

While states have the power over the “manner” of congressional elections, that power does not extend to adding qualifications for office, or the related power of adjudicating qualifications. I make this argument in Weaponizing the Ballot. A state can develop rules over the mechanics of appearing on the ballot, including threshold levels of support, but cannot extend to substantive evaluation of candidates.

This seems strange, in a sense. If my argument holds, it means flagrantly ineligible candidates–non-citizens, 15-year-olds, and so on–appear on the ballot and can “win” an election. But it’s happened before, and it’s not the state’s place to exclude such candidates. It’s left for the people to choose their candidates, and for Congress to judge whether those candidates are qualified. I made this claim when challenges to Senator Mary Landrieu’s inhabitancy floated up several years ago (although that case is also different, as you only have to be an inhabitant “when elected,” and early ballot access determinations are even weaker).

Two other details to consider. First, the Constitution provides, “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” There have been no efforts in Congress to expel its own sitting members on this ground (despite a successful effort to impeach former President Trump after he left office). This is not really relevant to the analysis above, but an interesting question about the power of Congress that has not been used but now is sought to be enforced by private litigants.

Second, the most plausible way forward is the for the NCSBE to construe its jurisdiction narrowly under the enabling statute. Its jurisdiction extends to evaluating the qualifications of a “candidate,” which means “A person having filed a notice of candidacy under the appropriate statute for any elective office in this State.” (Emphasis added.) It’s plausible to read this statute to exclude federal offices. A related provision explains, “Grounds for filing a challenge are that the candidate does not meet the constitutional or statutory qualifications for the office, including residency.” (Emphasis added.) “Residency” is not a qualification for federal office (it’s inhabitancy for Congress), and it’s been used for, among other things, county sheriff candidates in North Carolina. Again, an emphasis that the scope was intended for state candidates, not federal.

That’s not to say it’s not plausible to read the jurisdictional grant more broadly. “Including residency” doesn’t exclude federal grounds, I know. But it is to say that some complicated questions could be avoided if read narrowly.