Cawthorn says attempt to toss him off 2022 ballot for role in January 6th is unconstitutional
♦By Rich Shumate, ChickenFriedPolitics.com editor
ASHEVILLE (CFP) — Tucked inside the 14th Amendment to the U.S. Constitution, in lesser known Section 3, is a provision that says “no person shall be a Senator or Representative in Congress” if, having taken an oath to support the Constitution “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
A North Carolina federal judge is now being called upon to decide whether that prohibition — meant to keep unreconstructed Confederates out of Congress after the Civil War — is applicable to supporters of Donald Trump involved in events surrounding the January 6, 2020 riot at the U.S. Capitol.
North Carolina Republican U.S. Rep. Madison Cawthorn, a fiercely pro-Trump partisan who spoke at a rally on the Ellipse before the riot, has gone to federal court to block the North Carolina State Elections Board from hearing a complaint filed by voters in his district, asking that he be barred from the 2022 ballot over his actions that day.
If successful, his preemptive strike would prevent the board’s Democratic majority from possibly agreeing that his actions amounted to “insurrection” and barring him from seeking re-election.
His case has been assigned to U.S. District Judge Richard Myers in Wilmington, whom Trump appointed to the federal bench in 2019.
The group that organized the effort to disqualify Cawthorn, Free Speech for People, is planning similar challenges against other conservative pro-Trump lawmakers who have raised false claims of voter fraud and riled up the crowd on January 6th.
Section 3 does not outline a mechanism to disqualify lawmakers for “insurrection,” or even define the term. So the ad-hoc effort to use it as a cudgel against lawmakers who have promoted Trump’s unproven allegations of voter fraud plows untested legal ground that Cawthorn’s suit might help define.
Another aspect of the legal fight could be the conditions attached to North Carolina’s readmission to the Union in 1868, which required the state to enforce the 14th Amendment.
The North Carolina elections board has not acted on the voters’ challenge. However, state law requires that the board automatically hold a hearing if challengers establish a “reasonable suspicion” that there is a valid reason for disqualification, a provision that Cawthorn says violates his First Amendment right to run for office.
Cawthorn also contends that the challenge statute would require him to prove he didn’t engage in insurrection or rebellion, rather than the challengers proving that he did, which violates his rights under the 14th Amendment’s Due Process Clause.
And finally, he argues that under the Constitution, only Congress has the authority to decide who is or is not eligible to be a member, not a state board.
He wants the judge to prevent the state elections board from even hearing the challenge, contending the entire effort is a constitutional affront.
In a statement, Cawthorn said the challenge statute is “being used as a weapon by liberal Democrats to attempt to defeat our democracy by having state bureaucrats, rather than the people, choose who will represent North Carolina in Congress.”
But Ron Fein, Free Speech for People’s legal director, said in a statement that “Cawthorn’s attempt to bypass the state’s well-developed procedures for resolving candidacy challenges is based on misunderstandings of federal and state law,” particularly the state’s agreement to enforce the 14th Amendment.
“It is unfortunate that Madison Cawthorn has decided to run to federal court instead of complying with the process before the State Board of Elections,” Fein said. “We intend to move to intervene in this federal court case to oppose Cawthorn’s attempted end-run around the laws that the people of North Carolina enacted for addressing candidacy challenges.”
Under state law, the five-member election board has three members from the same party as the governor – currently Democrat Roy Cooper – and two members of the opposing party.
After Cooper was elected in 2016, Republicans who control the legislature passed legislation to reconfigure the board to keep it out of Democratic hands, but Cooper successfully went to court to overturn that effort.
Cawthorn, 26, from Hendersonville, is the youngest member of Congress. He was elected in 2020 and took his oath of office, vowing to uphold the Constitution, just days before the January 6th riot.
He has announced that he plans for re-election in the state’s newly configured 13th District, rather than the 11th District in Western North Carolina that he currently represents. However, the state’s new map is being challenged in both state and federal courts and could be redrawn.