On May 24, the Fourth Circuit issued an opinion in Cawthorn v Amalfi, 22-1251. This is the case filed by Congressman Madison Cawthorn against the North Carolina administrative procedure for evaluating the qualifications of congressional candidates. The U.S. District Court had ruled that the qualification at issue, the “insurrection” qualification mentioned in the Fourteenth Amendment, is no longer in effect because Congress in the 19th century gave everyone in the future amnesty.

None of the three judges on the Fourth Circuit panel agreed with the U.S. District Court. Judge Toby Heytens, a Biden appointee, wrote the opinion and said it is not necessary to decide whether states may judge qualifications for congressional candidates. He said it is enough that the panel decide the issue of whether the “insurrection” clause is still in effect. All three judges agree that it is still in effect.

The other two judges wrote concurrences which completely disagree with each other. Judge James Wynn, an Obama appointee, said states may judge qualifications for congressional candidates. Judge Julius Richardson, a Trump appointee, said states may not judge qualifications for congressional candidates.

Judge Wynn seems outraged that congressional candidates appear on the ballot in states in which they don’t live, but this practice has become quite common in recent years, and the Second and Fifth Circuits have allowed such candidacies.

All three judges agree that the U.S. District Court was wrong to rule that the challengers to Congressman Cawthorn could not intervene in the case. Their intervention was essential, because after Cawthorn won in the U.S. District Court, the state didn’t appeal. But the challengers did, which made this Fourth Circuit action possible.

This decision appears to be the first ballot access opinion written by a Biden appointee.