Sign up for The Morning newsletter from the New York Times<\/a><\/p>And for the first time, a lawmaker who embraced the rioters may have to answer for his actions in a court of law.<\/p>
\u201cI don\u2019t think we can have those persons who have engaged in acts of insurrection elected to office and serving in office in violation of their constitutional duties and oath,\u201d said John R. Wallace, one of the lawyers on the case and a campaign finance and election law expert in Raleigh, North Carolina. He added, \u201cIt should not be difficult to prove you are not an insurrectionist. It only seems to be difficult for Madison Cawthorn.\u201d<\/p>
Cases challenging the legitimacy of a candidate before election boards usually hinge on a candidate\u2019s age, legal residency, place of birth or citizenship status, or the legitimacy of signatures in a candidacy petition.<\/p>
This case revolves around the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy who were streaming back to Washington to reclaim their elective offices \u2014 and infuriating unionist Republicans.<\/p>
That section declares that \u201cno person shall\u201d hold \u201cany office, civil or military, under the United States, or under any state, who, having previously taken an oath\u201d to \u201csupport the Constitution,\u201d had then \u201cengaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.\u201d<\/p>
Cawthorn, 26, who is in his first term in Congress, has denounced the case as an egregious misreading of the 14th Amendment, but he has retained James Bopp Jr., one of the most prominent conservative campaign lawyers in the country, as counsel.<\/p>
Bopp declared the matter \u201cthe most frivolous case I\u2019ve ever seen\u201d but allowed that what he called an \u201cunethical\u201d exploitation of North Carolina law by \u201ccompetent\u201d lawyers could pose a real threat to Cawthorn \u2014 and by extension, to others labeled \u201cinsurrectionists\u201d by liberal lawyers.<\/p>
\u201cThis is the real threat to our democracy,\u201d he said. \u201cJust by bringing the complaint, they might jeopardize a member of Congress running for reelection.<\/p>
\u201cThey have multiple targets,\u201d he added. \u201cIt just so happens that Madison Cawthorn is the tip of the spear.\u201d<\/p>
North Carolina\u2019s election statute offers challengers a remarkably low bar to question a candidate\u2019s constitutional qualifications for office. Once someone establishes a \u201creasonable suspicion or belief\u201d that a candidate is not qualified, the burden shifts to the office seeker to prove otherwise.<\/p>
If Cawthorn is labeled an \u201cinsurrectionist,\u201d that could have broader ramifications. Other Republican House members, such as Marjorie Taylor Greene of Georgia, Mo Brooks of Alabama, Paul Gosar of Arizona, and Lauren Boebert of Colorado face similar accusations, but their state\u2019s election laws present higher hurdles for challenges to their candidate qualifications. If one of their colleagues is disqualified for his role in encouraging the rioters, those hurdles might become easier to clear.<\/p>
The lawyers challenging Cawthorn\u2019s eligibility are using an amendment last invoked in 1920, when Rep. Victor L. Berger, an Austrian American socialist, was denied his seat representing Wisconsin after criticizing the U.S.’ involvement in World War I.<\/p>
If nothing else, the lawyers, including two former justices of the North Carolina Supreme Court, want to depose Cawthorn as part of discovery to question his actions before, during and after the attack on the Capitol.<\/p>
\u201cThere is, of course, much that we don\u2019t know, and the statute allows discovery by deposition and the production of records,\u201d Wallace said.<\/p>
There is much that is known. Whether it makes Cawthorn an \u201cinsurrectionist\u201d would have to be determined by North Carolina\u2019s Board of Elections or, more likely, by the state\u2019s courts, where the board might punt the matter.<\/p>
Weeks after the 2020 election, Cawthorn told a conservative gathering to \u201ccall your congressman\u201d to protest the results, adding, \u201cYou can lightly threaten them.\u201d He promoted the \u201cSave America\u201d rally behind the White House on Jan. 6, writing on Twitter, \u201cthe future of this Republic hinges on the actions of a solitary few,\u201d then adding, \u201cIt\u2019s time to fight.\u201d At the rally, he riled the crowd from the stage with talk of election \u201cfraud.\u201d<\/p>
He later called those jailed for storming the Capitol \u201cpolitical hostages\u201d and \u201cpolitical prisoners\u201d that he would like to \u201cbust\u201d out of prison.<\/p>
\u201cThe Second Amendment was not written so that we can go hunting or shoot sporting clays. The Second Amendment was written so that we can fight against tyranny,\u201d he would later say in Franklin, North Carolina. \u201cIf our election systems continue to be rigged and continue to be stolen, then it\u2019s going to lead to one place, and it\u2019s bloodshed.\u201d<\/p>
Bopp said all of that was beside the point. Section Three of the 14th Amendment concludes with a key phrase that refers to the insurrectionist disqualification, or disability: \u201cCongress may by a vote of two-thirds of each House, remove such disability.\u201d Congress did just that, he said, with the Amnesty Act of 1872 that declared that \u201call political disabilities imposed by the third section\u201d of the 14th Amendment were \u201chereby removed from all persons whomsoever.\u201d<\/p>
Gerard N. Magliocca, an expert witness for the complainants and a law professor at Indiana University who has written on the constitutional section in question, said Bopp was wrong.<\/p>
Congress did not discuss what would happen in the future when it debated granting amnesty to confederates in 1872, nor did it have the power to grant prospective pardons, he said. Berger, the sole officeholder denied reelection after Reconstruction because of the amendment, tried to make the same argument, but Congress rejected it.<\/p>
Besides, Magliocca said, the section at issue remains in the Constitution; Congress does not have the power to repeal it.<\/p>
Bopp also said the Constitution clearly granted each chamber of Congress \u2014 not a board of elections \u2014 the power to determine eligibility for office, an assertion that Ron Fein, legal director of Free Speech for People, a nonpartisan interest group that is participating in the challenge, dismissed.<\/p>
\u201cIf he\u2019s right, then a 9-year-old could show up with enough signatures and qualify for the ballot, because only Congress could disqualify him after the election,\u201d Fein said.<\/p>
Michael J. Gerhardt, a constitutional law professor at the University of North Carolina, said such disputes were weighty ones for a board of elections, and he predicted that Cawthorn would seek to force the courts to decide whether he is or is not an insurrectionist. He did not agree that the case was frivolous.<\/p>
\u201cThere\u2019s an old saying in law school: \u2018Does it pass the straight-face test?\u2019 \u201d he said. \u201cAnd I think they pass the straight-face test.\u201d<\/p>
For Cawthorn, that would be a problem beyond the spectacle of him having to answer whether he is an insurrectionist. North Carolina\u2019s new House district map, heavily gerrymandered by the Republican Legislature, is currently stuck in court, and the state\u2019s Board of Elections has frozen the candidacy qualifications case against Cawthorn until he can determine which district he intends to be a candidate in.<\/p>
With North Carolina\u2019s Republican primary scheduled for June, the delays could jeopardize his ability to even get his name on a ballot.<\/p>
Ultimately, those involved in the case could use Cawthorn\u2019s example to try to keep Trump off the ballot in North Carolina, a key swing state, should he try for a presidential comeback in 2024.<\/p>
\u201cWe are definitely going to file other challenges,\u201d Fein said. \u201cWe have no specific names or dates to divulge just yet.\u201d<\/p>","protected":false},"excerpt":{"rendered":"
WASHINGTON \u2014 A group of lawyers is working to disqualify from the ballot a right-wing House Republican who cheered on the Jan. 6 rioters unless he can prove he is not an \u201cinsurrectionist,\u201d disqualified by the Constitution from holding office, in a case with implications for other officeholders and potentially former President Donald Trump. The […]<\/p>\n","protected":false},"author":1,"featured_media":1905,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-1904","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/posts\/1904","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/comments?post=1904"}],"version-history":[{"count":0,"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/posts\/1904\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/media\/1905"}],"wp:attachment":[{"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/media?parent=1904"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/categories?post=1904"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.gynesisradio.com\/tpsquare\/wp-json\/wp\/v2\/tags?post=1904"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}