A North Carolina congressman might lose his eligibility to run for office, which could instigate a new legal movement towards accountability for those who incited the Jan. 6 Capitol attacks.
After facing a legal challenge to his eligibility due to his involvement in the Jan. 6 insurrection, U.S. Rep. Madison Cawthorn, R-NC, filed a lawsuit on Monday against the state of North Carolina claiming that the election statute in question is unconstitutional.
The challenge claims that Cawthorn encouraged the crowd, incited violence and possibly collaborated with organizers of the attack during the planning stage.
“Cawthorn’s case is so unusual that it appears that he's broken the mold once again,” said Christopher Cooper, Madison distinguished professor of political science & public affairs at Western Carolina University.
Cawthorn represents NC-11, located in western North Carolina. He was first elected to Congress in the 2020 election, succeeding Republican Mark Meadows, who left the seat vacant to serve as former President Donald Trump’s chief of staff.
Cawthorn, who is 26 years old, is known in national headlines for his young age, as well as multiple sexual assault allegations, allegations of Nazi sympathies, involvement in the Trump rally on Jan. 6 and lies surrounding the conditions and consequences of a 2014 car crash that left him partially paralyzed.
A group of lawyers challenge Cawthorn’s eligibility
Free Speech for People brought a challenge on Jan. 10 to the North Carolina Board of Elections, attempting to disqualify Cawthorn from running in 2022, citing his involvement in the Jan. 6 attack on the Capitol and attempts to overturn the 2020 election.
The group of lawyers, led by two former N.C. Supreme Court justices, argue that Section 3 of the 14th Amendment makes Cawthorn ineligible because he aided and abetted the insurrection and “was involved in efforts to intimidate Congress and [former Vice President Mike Pence] into rejecting valid electoral votes and subvert the essential constitutional function of an orderly and peaceful transition of power.”
The challenge calls upon the “disqualification clause” in the 14th Amendment. The clause states that any representative who “having previously taken an oath” to uphold the Constitution, and was “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” is ineligible to run for future office.
Mac McCorkle, professor of the practice in the Sanford School of Public Policy, believes Cawthorn should be held accountable for his involvement because “Section 3 says participating in an insurrection is disqualifying from office.”
In North Carolina, Article 11B states that once challengers indicate a “reasonable suspicion or belief” in a candidate’s qualifications, the burden of proof is placed on the candidate to prove their eligibility.
“We're certainly used to the burden of proof being on the prosecution, but in this case, it's on the defendant. And I think part of that is because when this law was written in 2006, this probably isn't what they had in mind. They were thinking about things like residency requirements, age requirements; fairly black and white issues,” Cooper said.
Cawthorn should have to face a deposition and answer questions regarding his participation in the planning and execution of the insurrection to resolve the question of his eligibility, the challenge suggests.
Cawthorn advances federal lawsuit against State Board of Elections
A lawyer for Cawthorn initially stated his intention to invoke the Amnesty Act of 1872, which ended “political disabilities”—disqualifications against holding office—against most of the leaders of the Confederacy and other former civil and military officials. He later announced his lawsuit questioning the validity of the case.
“There’s nothing in the Amnesty Act that says it’s only applicable to the Civil War, and it was very broad in its terms,” Cawthorn’s lawyer James Bopp Jr. said to Talking Points Memo. He added that Cawthorn’s actions did not qualify as partaking in an insurrection.
The legal director for Free Speech For People said to TPM that Bopp’s argument is “contradicted by history and common sense.”
It is “kind of ironic that he would be talking about the Confederate Amnesty Act because that would seem to admit that he was involved in an insurrection,” McCorkle said.
Article 11B describes that the panel of officials determining the outcome of this case will be county election officials from the district in which the candidate intends to run. Given North Carolina’s history of gerrymandering, there have been concerns about the partisanship of this selected committee.
“They're supposed to make every possible effort to balance partisanship. But what does ‘to the extent possible’ mean?” Cooper questioned.
McCorkle noted that to evade the challenge, Cawthorn needs “a winner of a legal argument that doesn't require evidence,” which is the approach he has taken.
When Cawthorn filed his candidacy with the North Carolina Board of Elections, he “agreed to participate in the procedures set forth in North Carolina law for how the State Board of Elections resolves challenges to candidacy based on qualifications, and those include being deposed before the hearing,” Ron Fein, the legal director of Free Speech for People, said to the Carolina Press Public.
Cawthorn filed a lawsuit on Monday in the United States District Court against the N.C. State Board of Elections officials to evade the challenge. The congressman claims that the State Board of Elections cannot keep him off the ballot because Article 11B, the NC statute that allows Free Speech for People to challenge his eligibility, is “unconstitutional.”
"The undemocratic scheme contained in the North Carolina Challenge provisions supplants voters for state bureaucrats who will determine who can represent the People," Cawthorn’s lawyers said in the court filing. "This is fundamentally anti-democratic and contrary to the public interest.”
McCorkle questioned the validity of the “anti-democratic” argument, because without the statute in question, “the state cannot bar a 15-year-old from running” for office or enforce residency requirements.
For voters in both the former NC-11 and proposed NC-13, in which Cawthorn now intends to run, the national drama surrounding Cawthorn is a consistent narrative. “The takeaway is confusion and uncertainty. It also is one more controversy with Madison Cawthorn at the center of it,” Cooper said.
Due to the gerrymandered nature of the Congressional maps, if there is a political impact for Cawthorn, “it's gonna matter in the primary,” Cooper said.
Cooper said there are two goals associated with the legal challenge: first, to get Cawthorn kicked out of office; and second, to get him under oath to admit what he knew on Jan. 6. Cooper believes the “second goal is more likely than the first” because he might “say something that he did that implicates somebody else.”
This case is the first of its kind in response to the Jan. 6 insurrection and challenge to the election results, but it will likely not be the last, Cooper said.
“I would expect it to occur with other high profile members of Congress whose names surrounded the interaction,” Cooper said, noting U.S. Reps. Marjorie Taylor Greene, R-GA, and Matt Gaetz, R-FL, as two potential representatives that could face challenges to their eligibility.
The Free Speech for People Organization intends to continue questioning the eligibility of congresspeople on their involvement in the Jan. 6 insurrection, Fein wrote in a press release, “We are definitely planning to file a series of these challenges … [Cawthorn] is the first, but he will not be the last,” said Fein.
Cawthorn switched districts ahead of the 2022 midterm race
In the midst of the questions about his eligibility, Cawthorn has decided to switch districts within the state. He now intends to run in the potential NC-13, which is located near the Charlotte suburbs, as opposed to his current district, NC-11.
“The reason he made this switch is to give him a larger footprint” for a statewide election, Cooper said, referring to Cawthorn’s intentions to run for governor when he turns 30.
The 2022 primary has been delayed from March to May in order to give the Supreme Court time to determine the constitutionality of North Carolina’s new congressional maps. Until it is determined if NC-13 will exist in the shape Cawthorn intends to run, the challenge against him is on hold at the State Board of Elections level.
In the 2020 primary, Cawthorn became the only Republican congressional candidate not endorsed by Trump to advance to the general election.
Throughout the election Cawthorn “clearly galvanized a very specific population of people, some of whom were my peers,” said sophomore Connor Booher, who grew up in NC-11.
Booher described how Cawthorn targeted young conservatives on the campaign trail and contributed to political polarization within the district.
His political personality is “frustrating because his representation of my home didn't seem to align with the people who live there by and large, by nature of the fact that it is a heavily gerrymandered district,” Booher said.
NC-11 had recently been redrawn after courts ruled it gerrymandered, but Cawthorn still won the general election by more than 12 percentage points. While on the campaign trail, he used media opportunities to make a name for himself within the Republican Party.
On Jan. 6, when Congress was scheduled to approve the results of the 2020 presidential election but were met with insurrectionists breaking into and attacking the U.S. Capitol, Cawthorn voted to overturn the election results.
Cawthorn also spoke at the “Stop the Steal” rally organized by Trump that preceded the Capitol attack. “This crowd has some fight in it,” he said at the rally.
“His very immediate and early involvement in the Jan. 6 insurrection and his refusal to accept any of the blame for that is obviously frustrating as a constituent,” Booher said.
At a Macon County Republican Party event in August 2021, Cawthorn warned that “if our election systems continue to be rigged and continue to be stolen, then it's going to lead to one place and that's bloodshed.”
“It looks like he's at least going to have to answer a bunch of questions and explain a bunch of things about what he was doing in and on Jan. 6,” McCorkle said.
“Can someone who did those things faithfully and honestly uphold their oath to represent the whole of their constituents?” Booher asked.
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Kathryn Thomas is a Trinity junior and news editor of The Chronicle's 118th volume.