Recent judicial developments on the qualifications to run for Congress

It’s been a busy year for the typically-sleepy Qualifications Clause of the Constitution, but a couple of judicial developments are noteworthy.

First, Newsom v. Golden considered the Tennessee Republican Party’s move to boot a candidate who failed to meet the Party’s bylaws–specifically, a requirement that candidates must have voted in 3 of the last 4 statewide Republican primaries or be vouched for as a “bona fide” Republican by the Party. It came on the heels of new state law that adds qualifications to candidates, a direct shot at U.S. Term Limits v. Thornton (but a law that doesn’t apply to this election). And Rick Pildes here at ELB thought more about the Party’s power to exclude candidates, too.

The case has been voluntarily dismissed, but not before a judicial opinion denying the motion for preliminary injunction. There are several legal issues to sort through, but here’s a noteworthy part about the Qualifications Clause (which, frankly, also anticipates the unconstitutionality of Tennessee’s new law):

It might be a problem if Tennessee required that [the would-be candidate] Starbuck be a resident of Tennessee for a period of time in order to be elected, as California required for its Congressional candidates. Schaefer v. Townsend, 215 F.3d 1031, 1034 (9th Cir. 2000) (finding unconstitutional a state statue requiring that its candidates be a registered voter requiring a minimum of 29 days residence in a voting precinct). Similarly, it might be a problem if the TRP [Tennessee Republican Party] found Starbuck ineligible because he was a resident of another state when his candidacy paperwork was filed in light of the “when elected” language in Article I, Section 2, clause 2. Texas Democratic Party v. Benkiser, 459 F.3d 582, 590 (5th Cir. 2006) (finding violation of Elections Clause where Texas political party found incumbent congressional candidate ineligible because he was residing in Virginia). However, neither is the situation here. . . .

The problem with Starbuck’s argument is at least two-fold. First, as it pertains to the TRP and Golden, there is a serious question as to whether they are state actors, even though “state action” (or under color of state law) is an essential element of any Section 1983. Parratt v. Taylor, 451 U.S. 527, 535 (1981). This alone is cause for caution and reflection under the circumstances presented here . . . .

Second, and as to all Defendants, whether Starbuck is truly a bona fide Republican has nothing to do with his qualifications under Article I, § 2, cl.2 of the Constitution. That is, the TRP’s decision will not change or add to the requirement that Starbuck be at least 25, a citizen of the United States for seven years, and a resident of Tennessee when he is elected, should Tennessee voters so choose.

“The Party’s ability to define who is a ‘bona fide Democrat’ is nothing less than the Party’s ability to define itself.” LaRouche v. Fowler, 152 F.3d 974, 996 (D.C. Cir. 1998). “Freedom of association means not only that an individual voter has the right to associate with the political party
of her choice, but also that a political party has a right to ‘identify the people who constitute the association,’ and to select a ‘standard bearer who best represents the party’s ideologies and preferences.’” Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)
(quoting Ripon Serv. In v. Nat’l Republican Party, 525 F.2d 567, 601 (D.C. Cir. 1975)).

I think this analysis is pretty much right. The Party is not a state actor (at least, in this case) for Section 1983 purposes. And, citing Eu, the Party has the freedom to associate, which differs from constitutional qualifications for office. There are deep and complicated tensions to consider when up against, say, the White Primary Cases and at what point the party becomes a state actor for constitutional purposes as opposed to an associational entity entitled to First Amendment protection when excluding members. But, sorting that out is left to another day.

Second, the “insurrectionist” cases (involving congressional candidates) are starting to wind down, as administrative tribunals (Indiana, Georgia) or courts (Arizona) toss the challenges, or candidates (North Carolina) lose their primaries. But not all of them (and some face appeals), and the Qualifications Clause appears (to me, anyway) to be attracting more attention from the judiciary. The Arizona Supreme Court concluded that its own “enabling” statute for challengers did not extend to this federal qualification, while nodding to the concern that Article I, Section 5 left it to Congress alone to adjudicate this qualification (a decision the district court reached).

But a Fourth Circuit opinion has, by far, the largest exchange on the topic (disclosure: I filed an amicus brief on behalf of neither party in the case). Although Madison Cawthorn lost his primary, the Court quickly issued a decision and noted that it was not yet moot. (Separately, I wonder where the case goes from here and whether Munsingwear ultimately vacates this opinion, but that’s a separate issue.) The three judges issued three opinions in Cawthorn v. Amalfi. The majority opinion, written by (the very recently-appointed!) Judge Heytens and joined by Judge Wynn, cleared a lot of the procedural difficulties before addressing the Amnesty Act of 1872 argument, on which the district court relied. But to get there (to even address the merits of the Act), the court slipped through a Qualifications Clause question:

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). . . .

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). 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.

Judge Richardson concurred in the judgment. But he had this to say on this point:

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.

I think (unsurprisingly, for readers of this blog!) that Judge Richardson has it right. But Judge Heytens at least attempts to thread that needle with language from Powell (inapt, I think, but understandable) to permit adjudication here, leaving open the question of other adjudications later.

Judge Richardson’s opinion is a full-throated defense of Congress’s prerogative to adjudicate qualifications (and why the district court was wrong to adjudicate them in the first place). (If I were a betting man, I’d wager that this is precisely the analysis that, I think, would attract a majority of the Supreme Court.)

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, conclude by showing why the district court’s interpretation of the 1872 Amnesty Act as 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.

Michael Ramsey (University of San Diego) has more over at the Originalism Blog in defense of Judge Richardson’s opinion: “I would call this a rare case of a ‘political question’ in the form of a determination textually committed to another branch. Or to put it another way, giving courts the power to decide the qualifications of Members in contested cases is ‘repugnant to’ (in Hamilton’s words for an irreconcilable conflict) the House’s power to decide them.”

All judges agreed, however, to remand the questions back to the district court. Judge Richardson qualified in a footnote, “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.”

One additional point. Judge Wynn concurred separately, specifically to respond to Judge Richardson’s opinion. Judge Wynn’s opinion badly errs, enabled by a bit of Googling:

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), (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), (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), (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).

This is a categorically incorrect understanding of the law. As the Tennessee opinion above notes, cases like Schaefer and Benkiser acknowledge that one must be an inhabitant “when elected,” and any pre-election adjudications of qualifications are inappropriate. As I argued in 2014, a similar challenge to Mary Landrieu should have been tossed from the courts–and was tossed. One could have good-faith disagreements about the power of courts to adjudicate qualifications–but on the matter of inhabitancy before an election, Judge Wynn gets it completely wrong. (The fact that so many arguable out-of-staters run in primaries or file ahead of an election, without incident most of the time, should be a hint.)

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