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Thursday, February 17, 2022

Abstention on cutting-edge constitutional issues

I am a few days late to comment on Gerard's post arguing the federal court should abstain from Madison Cawthorn's lawsuit seeking to stop the North Carolina Board of Elections proceeding to determine whether he can be barred from seeking office under § 3 of the 14th Amendment.

Gerard is correct about what the court should do. I am not convinced it will do that. Federal courts seem less likely to abstain where the federal constitutional issue that would be raised as a defense in state court is cutting-edge or otherwise nationally significant. The courts declined to abstain from Trump's lawsuit (in 2019) to stop Cy Vance's grand-jury investigation; federalism and separation of powers concerns, along with Trump's asserted immunity, created a sufficient federal issue to overcome Younger. A federal court might find that Cawthorn's argument that states lack the power to enforce § 3 and to keep a person off the ballot for federal office (which at least some scholars urge) sufficient to justify federal intervention and federal interference with the state proceedings, even if it does not fit any recognized exceptions or limitations to Younger.

I hope I am wrong. But courts approach Younger differently when the would-be federal plaintiff is a sitting congressman than when he is the owner of an adult theatre.

Posted by Howard Wasserman on February 17, 2022 at 10:17 AM | Permalink

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