Late last week, respected GOP attorney and former federal prosecutor Josh Howard filed a series of motions asking a federal court to block a planned investigation by the N.C. State Board of Elections concerning U.S. Representative Madison Cawthorn, NC-11, and his role in the January 6th, 2021, civil unrest inside the U.S. Capitol.
Cawthorn is asking for a preliminary and permanent injunction stopping the inquiry into the eligibility of his candidacy. The case was filed in North Carolina’s eastern district and a hearing is expected in Wilmington soon.
“States have long enforced age and residency requirements, without question and with very few if any legal challenges,” the NCSBE wrote in a court filing. “The State has the same authority to police which candidates should or should not be disqualified per Section 3 of the Fourteenth Amendment.”
In North Carolina, citizens can challenge a candidate’s eligibility if there’s “reasonable suspicion” the candidate ought to be disqualified. Concerned voters have cited the 14th Amendment of the U.S. Constitution, which says, “No person shall be a Senator or Representative in Congress” who “shall have engaged in insurrection or rebellion” after previously pledging to “support the Constitution.”
But Cawthorn says North Carolina’s challenge statute is unconstitutional and violates federal law. He argues that he should not be subjected to the requirement to defend himself under such an “unconstitutional statutory scheme.”
Cawthorn denies that he engaged in “insurrection or rebellion” against the United States, but this litigation is not based on Rep. Cawthorn’s factual defenses. Instead, this matter is before the Court based upon various constitutional and legal challenges to the North Carolina Challenge Statute itself.
Cawthorn notes that section 3 of the 14th amendment was repealed by a vote of Congress, as allowed by the text of the amendment.
On May 22, 1872, Congress passed the Reconstruction measure known as the General Amnesty Act. This measure removed all political disabilities imposed by Section 3 of the Fourteenth Amendment. President Ulysses S. Grant signed the measure into law.
“Running for political office is quintessential First Amendment activity and afforded great protection,” says Cawthorn. “When a challenge with NCSBE is filed, the Challenger is only required to file a verified affidavit, based on reasonable suspicion or belief of the facts stated disqualify the Candidate from running for office. When someone is exercising his First Amendment rights, reasonable suspicion is not enough to infringe on the fundamental right concerned.”
The statute does not designate what type of proof the candidate must provide to meet his burden of proof for any Challenge not based upon residency.
Cawthorn also argues the challenge to his candidacy usurps the U.S. House of Representatives power to make an independent, final judgment on the qualifications of its members under article 1 section 5.
According to Cawthorn, the challengers are represented by counsel for Free Speech for People, a legal advocacy group dedicated to launching “innovative and groundbreaking legal actions.
One of the types of legal actions Free Speech for People is pursuing is an effort which “urge[s] Secretaries of State and chief election officials across the country to bar insurrectionists from any future ballot.”
Ron Fein, counsel for the challengers, recently appeared on CNN’s Newsroom. He stated, “we are definitely planning to file a series of these challenges. I don’t want to talk about specific Members just yet, but Rep. Cawthorn is the first, but he will not be the last.”
Mr. Fein continued, “the evidence that we’ve put forth is enough that unless Cawthorn wants to come and try and present his case, which he is certainly entitled to do, the State Board of Elections will be compelled to rule he is disqualified.”
Fein was quoted by NPR as saying:
“It’s not just that Cawthorn spoke at that pre-attack demonstration — one of only two members of Congress who spoke there — alongside other speakers who were demanding trial by combat and talking about sacrificing blood to fight for America,” Fein said. “But we also have reliable reporting that Cawthorn and his team were communicating with the planners ahead of Jan. 6 and helped to plan some of these events.”
According to Cawthorn’s attorney, the lawyers for those filing the challenge have publicly bragged about forcing Cawthorn to sit for an under-oath deposition, and that appears to be one of the main goals behind the effort.
Former Republican state supreme court justice, Bob Orr is also behind the disqualification effort.
Orr has been a constant critic of Donald Trump and in 2021 formally left the GOP registering as an unaffiliated voter. Orr has cited a 150-year-old case when a North Carolina Confederate was disqualified from serving after the Civil War when the 14th Amendment was invoked.
Orr contends the events of January 6 were an insurrection, defined as a violent attempt to overthrow the government. Orr says Cawthorn took an oath and there was an insurrection. He says the question is how involved was Cawthorn?
“Did he provide aid and comfort and engage in this?” Orr said.
Whether the disturbing events of January 6 were an actual insurrection is a matter of considerable debate. There is no public evidence that Cawthorn did anything other than engaging in political speech on January 6. He has not been charged with a crime and there is no indication he is being investigated by law enforcement for his actions.
Cawthorn has become a lightning rod on both sides of the political aisle. He has universally been condemned on the left for his statements and actions including a recent episode in which he was seen cleaning a gun during a virtual hearing of the Veteran Affairs Committee. He has drawn the ire of some Republicans for his public declaration that he would abandon his current district in far Western North Carolina, for a newly created district closer to Charlotte, in part to keep a “go along to get along” Republican from winning the seat. His barb was seen as an attack on North Carolina’s Republican state house speaker Tim Moore.
It is unclear if Cawthorn’s plans could change after the North Carolina state supreme court blocked the new congressional redistricting plan. The General Assembly will adopt new congressional and legislative maps by February 18. The court is expected to make a final decision on maps Wednesday, February 23, just before candidate filing re-opens on Thursday, February 24.