Constitution’s insurrectionist ban

North Carolina officials reject Cawthorn claim that Constitution’s insurrectionist ban no longer applies

The case is an important early test for those seeking to impose consequences on members of Congress who embraced false claims about the 2020 election results.

By KYLE CHENEY

The North Carolina attorney general’s office says a constitutional prohibition on insurrectionists seeking federal office could be applied to GOP Rep. Madison Cawthorn if a state board determines he aided or encouraged the Jan. 6, 2021, attack on the Capitol.

In a late Monday court filing, state attorneys said a provision of the 14th Amendment — disqualifying insurrectionists from holding federal office — is not a defunct Civil War-era relic meant to apply only to former Confederates but a guard against future acts of insurrection. As a result, Cawthorn, who is fighting a challenge to his eligibility to run, could face that prohibition if the North Carolina State Board of Elections determines he meets the criteria, the state attorneys said.

The state’s filing came in a motion to dismiss Cawthorn’s lawsuit against the North Carolina State Board of Elections. Cawthorn is suing to prevent the board from even considering the challenge to his eligibility to seek a second term in the House.

In his lawsuit, Cawthorn claims the 14th Amendment provision was intended to apply only to former confederates who fought in the Civil War, and he cited a subsequent 1872 “amnesty” law that waived the 14th Amendment prohibition for those confederates as evidence of his claim.

But the state AG’s office, led by Democratic Attorney General Josh Stein, disagreed with Cawthorn’s interpretation, citing comments from legislators who helped pass the 1872 law and noting that Congress itself had applied the 14th Amendment prohibition in 1919 against a man named Victor Berger, who was barred from office for violating the Espionage Act during World War I.

“Plaintiff’s argument is meritless, as it would invalidate the expressed intent of the legislators who enacted both the Fourteenth Amendment and the Amnesty Act of 1872,” Special Deputy Attorney General Terence Steed wrote in a filing joined by three other officials in the state attorney general’s office.

The case is an important early test for those seeking to impose consequences on members of Congress who embraced former President Donald Trump’s false claims about the results of the 2020 election. Those claims helped fuel unrest that led to the attack on the Capitol last year, leaving scores of police officers injured and disrupting the transition of power from Trump to President Joe Biden.

North Carolina features one of the most permissive laws permitting challenges to candidates’ eligibility — typically for things such as age, residency or citizenship. Under the statute, candidates facing challenges must affirmatively defend themselves, and the elections board determines whether the evidence supports disqualification.

A challenge to Cawthorn’s eligibility for office was filed last month by attorneys representing constituents in Cawthorn’s district. They said Cawthorn “was involved in efforts to intimidate Congress and the Vice President into rejecting valid electoral votes.” And they said when he appeared at a Jan. 6, 2021, rally that preceded the Capitol attack, Cawthorn would have known it was likely to be a prelude to the violence.

These factors, they said, trigger the 14th Amendment prohibition on Cawthorn’s eligibility to serve in Congress.

In addition to his claim that the 14th Amendment prohibition is obsolete, Cawthorn’s suit argues the North Carolina law giving the state the ability to evaluate his eligibility is an unconstitutional qualification for federal candidates, who are only subject to criteria set out in the Constitution. Congress has the ultimate authority, he notes, to determine whether to seat any incoming lawmakers.

“[T]he public interest is served in choosing the People’s representatives by democratic processes, not by state bureaucrats, which Challengers propose here,” Cawthorn argues in a brief filed by prominent conservative attorney James Bopp Jr. “The undemocratic scheme contained in the North Carolina Challenge provisions supplants voters for state bureaucrats who will determine who can represent the People.”

But the state attorneys say Cawthorn’s complaint is misguided. The state elections board merely prevents ineligible candidates — those who fall short of the constitutional requirements to run — from appearing on the ballot. Congress can determine later that an elected lawmaker is ineligible to be seated in the House. But state authorities have power to evaluate potential candidates for office, the state attorneys say.

The bulk of the state attorneys’ argument is simply that Cawthorn’s lawsuit is premature. The state elections board gives candidates ample opportunity to defend themselves against challenges and has made no ruling in Cawthorn’s case. In addition, Cawthorn’s challenge comes amid a court-ordered redistricting that could affect the district Cawthorn is running to represent, which may make the challenge against him moot.

If the challenge against Cawthorn moves forward, it first goes to a three-member investigative panel — appointed by the state elections board — for a determination. After the panel issues a ruling, the parties may appeal the ruling to the five-member state board. This process, state attorneys say, offers Cawthorn multiple chances to defend his eligibility. His lawsuit should only be filed after this process is complete, they argue.

“[Cawthorn] has made his claim before he has suffered any harm,” the attorneys say. “Any candidate challenge proceeding may result in Plaintiff successfully demonstrating that he is not disqualified; in that case, he would suffer no injury whatsoever.”