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Tuesday, May 03, 2022

The Fourth Circuit Argument in the Cawthorn Case

Today's argument in Cawthorn v. Circosta may be rendered moot if Representative Cawthorn loses his primary race in two weeks. That said, there was one detail from the argument that I wanted to highlight.

On the question of whether the Qualifications Clause makes Congress the exclusive judge of Section Three ineligibility for congressional candidates, one member of the panel cited Jones v. Montague, a 1904 Supreme Court case, as support. Montague does say in dicta that Congress is the sole judge of the qualifications of its members. The case strikes me, though, as a poor source of authority. The Court there rejected a challenge by Black defendants against the white supremacist Virginia Constitution of 1901 that established a system that excluded them from voting in violation of the Fifteenth Amendment. 

The better source of authority (though also dicta) is U.S. Term Limits v. Thornton, which said that Congress is the ultimate (not the sole) judge of the qualifications of its members.

Posted by Gerard Magliocca on May 3, 2022 at 06:25 PM | Permalink


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