11th Circuit finds eligibility challenge to Marjorie Taylor Greene moot, but one judge finds Georgia had no power to adjudicate her qualifications

From Greene v. Secretary of State (disclosure: I filed an amicus brief in the case), a per curiam opinion (Judges Wilson, Branch, and Lagoa):

As explained, in this federal lawsuit, Rep. Greene is seeking to enjoin the application of the Challenge Statute against her in the state proceedings to prevent her from being disqualified as a candidate for Congress under § 3 of the Fourteenth Amendment. However, the state proceedings under the Challenge Statute have concluded, and Rep. Greene has prevailed at each stage: the ALJ ruled in Rep. Greene’s favor, Secretary Raffensperger adopted the ALJ’s conclusions, the Superior Court of Fulton County affirmed the Secretary’s decision, and the Supreme Court of Georgia denied the Challengers’ application for discretionary review. Ultimately, Rep. Greene was not disqualified from being a candidate for Congress and is presently on the ballot for the upcoming election. Accordingly, we no longer have the ability to accord Rep. Greene meaningful relief.[fn. 1] We therefore hold that this case is moot.

fn. 1: Rep. Greene’s argument that this case is not moot because it falls within the “exception to the mootness doctrine for cases that are capable of repetition, yet evading review” is unavailing. . . . Rep. Greene has not established that the exception applies in this case. . . .

But Judge Branch concurred, explaining that while the case was moot, Greene was entitled to a preliminary injunction at the time she filed the federal lawsuit (her opinion resembles, but has differences for another blog post, Judge Richardson’s in the 4th Circuit, here, and tracks an argument I raised in my amicus brief):

The Constitution divides authority to regulate congressional elections between the states and the federal government. Article I, § 2 of the U.S. Constitution sets forth the qualifications for anyone wanting to serve in the U.S. House: “[n]o 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.” U.S. Const. art. I, § 2, cl. 2. Article I, § 5, in turn, specifies that Congress judges whether a person satisfies those qualifications: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” U.S. Const. art. I, § 5, cl. 1. Meanwhile, the Constitution empowers the states to regulate the “Times, Places and Manner of holding Elections” for the U.S. House and Senate. U.S. Const. art. I, § 4 (“Elections Clause”). But as the Supreme Court explained in U.S. Term Limits, Inc. v. Thornton, the states’ power to regulate the “Times, Places and Manner of holding Elections” does not include the power to add to the existing constitutional qualifications for congressional office. 514 U.S. 779, 783–827 (1995). When states add qualifications, they exceed their authority under Article I, § 4.

. . .

. . . So the states can regulate election procedures, but when they impose a “substantive qualification rendering a class of potential candidates ineligible for ballot position,” they exceed their authority under Article I, § 4.

Turning to this case, in purporting to assess Rep. Greene’s eligibility under the rubric of § 3 of the Fourteenth Amendment to the U.S. Constitution, Georgia imposed a substantive qualification on her. The State was not merely, as the district court incorrectly concluded, enforcing the preexisting constitutional disability in § 3. Instead, the State Defendants, acting under the Challenge Statute, forced Rep. Greene to defend her eligibility under § 3 to even appear on the ballot pursuant to a voter challenge to her candidacy—thereby imposing a qualification for office that conflicts with the constitutional mechanism contained in § 3. In other words, by requiring Rep. Greene to adjudicate her eligibility under § 3 to run for office through a state administrative process without a chance of congressional override, the State imposed a qualification in direct conflict with the procedure in § 3—which provides a prohibition on being a Representative and an escape hatch.[fn. 6]

[fn. 6]: Critically, an individual who would otherwise be barred by § 3 may still hold office if Congress removes § 3’s disability by a vote of two-thirds of each House. U.S. Const. amend. XIV, § 3 (“But Congress may by a vote of two-thirds of each House, remove such disability.”).

In so doing, the State exceeded its authority under Article I, § 4 and invaded Congress’s role to judge its members’ qualifications under Article I, § 5. “[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” Term Limits, 514 U.S. at 833–34 (emphasis added). The Supreme Court has distinguished between impermissible substantive qualifications that could handicap a class of candidates and permissible procedural regulations that, for example, “demonstrate substantial community support.” Cartwright, 304 F.3d at 1143–44 (quotations omitted) (emphasis removed). The State’s application of the Challenge Statute to Rep. Greene to determine her eligibility to appear on the ballot—which was far from a “generally applicable and evenhanded” procedural determination and was untethered from any community support in the electoral process—falls in the first category. Term Limits, 514 U.S. at 834–35 (explaining that Supreme Court decisions upholding election procedures “did not involve measures that exclude candidates from the ballot without reference to the candidates’ support in the electoral process”); see also Cartwright, 304 F.3d at 1144 (distinguishing between unconstitutional substantive qualifications and permissible election procedures that require candidates to show a threshold of community or voter support to maintain the integrity and regularity of the electoral process). In sum, rather than merely imposing an election procedure, the State’s pre-election adjudication under the Challenge Statute was an “effort to dress eligibility to stand for Congress in ballot access clothing.” Term Limits, 514 U.S. at 829 (quotations omitted). Accordingly, at the time of her hearing before the district court, Rep. Greene had shown a substantial likelihood of success on the merits.

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