Jurisprudence

Don’t Underestimate the Legal Challenge to Madison Cawthorn’s Reelection

Yes, it’s a long shot. But it could actually work.

Madison Cawthorn speaking onstage.
Rep. Madison Cawthorn speaks during the Conservative Political Action Conference on July 9 in Dallas. Brandon Bell/Getty Images

On Monday, a group of North Carolina voters filed a challenge to Republican Rep. Madison Cawthorn’s candidacy in 2022. Their complaint alleged that Cawthorn is constitutionally ineligible to serve in Congress because he “engaged in an insurrection against the United States” by facilitating the Jan. 6 attack on the Capitol. The complaint is a longshot, but it is firmly rooted in the 14th Amendment, as well as a series of state laws that are surprisingly favorable to Cawthorn’s challengers. Even if the challenge fails to keep Cawthorn out of Congress, it could still succeed in forcing him to reveal new details about his involvement in the Jan. 6 assault.

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Although the 14th Amendment is best known for granting birthright citizenship, due process, and equal protection to newly freed slaves, it also contains several provisions designed to limit former Confederates’ influence in American governance after the Civil War. Most notably, its “disqualification clause” states that no one who “engaged in insurrection or rebellion” against the U.S. may hold public office—unless Congress grants them amnesty by a two-thirds vote. This provision was enforced only briefly, Indiana University McKinney School of Law professor Gerard Magliocca has documented, as Congress granted broad amnesty to erstwhile Confederates in 1872. Still, the disqualification clause remains on the books as an unused tool to keep insurrectionists out of the government they sought to topple.

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Enter Cawthorn, the young demagogue who cheered on Donald Trump’s efforts to overturn the 2020 election even as rioters scaled the walls of the Capitol. Consider his actions in the days leading up to the insurrection: On Dec. 21, the congressman-elect urged his supporters to “lightly threaten” their representatives. “Say: ‘If you don’t support election integrity, I’m coming after you,’ ” he instructed. “Madison Cawthorn’s coming after you. Everybody’s coming after you. ” Ten days later, Cawthorn announced his plan to protest the certification of Joe Biden’s victory. And on Jan. 4, one day after taking the oath of office, Cawthorn tweeted: “January 6th is fast approaching, the future of this Republic hinges on the actions of a solitary few. … It’s time to fight.”

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On Jan. 6, Cawthorn spoke at the notorious “Stop the Steal” rally that preceded the Capitol attack. He faulted other Republicans for “not fighting” and praised the crowd for having “some fight.” At 1:31 p.m., as violent protesters breached the perimeter of the seat of government, Cawthorn declared that “the battle is on the house floor.” Shortly thereafter, rioters began smashing the windows of the Speaker’s Lobby to reach that very floor. After the horrific events of that day, Cawthorn voted to reject electoral results cementing Trump’s defeat and said he did not regret his speech at the rally. Later, he expressed sympathy for the insurrectionists held in jail, describing them as “political hostages” and “political prisoners” whom he would like to “bust” out. The congressman also warned of “bloodshed” if “our election systems continue to be rigged” and encouraged his fans to stockpile “ammunition” to prepare for the coming “bloodshed” over “stolen” elections.

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Does this conduct disqualify Cawthorn from public office under the 14th Amendment? Several North Carolina voters think so—and they believe they have a legal opportunity to prove it. State law allows “any qualified voter” registered in a candidate’s district to challenge that candidate’s qualifications for office. When a challenger puts forth “reasonable suspicion or belief” that the candidate “does not meet the constitutional … qualifications for the office,” then the candidate must “show by a preponderance of the evidence” that he is indeed qualified. If the candidate in question fails to carry this burden, the North Carolina State Board of Elections must remove him from the ballot. The candidate can appeal his disqualification to the North Carolina Court of Appeals, then to the North Carolina Supreme Court, which currently has a Democratic majority.

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To see how this process works, imagine that a 32-year-old seeks to appear on the ballot in North Carolina as a candidate for president. The Constitution requires the president to be at least 35 years old, so this individual is ineligible to serve. Any voter in North Carolina could contest his candidacy, and once they do, the board of elections has an obligation to keep him off the ballot. It is true that the Constitution only bars 32-year-olds from serving as president, but not from running for president. The courts have easily reconciled this distinction; as then-Judge Neil Gorsuch explained in 2012, “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

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Just as the board of elections can adjudicate ineligibility due to age, Cawthorn’s opponents argue, it can adjudicate ineligibility due to insurrection. Once again, state law lays out the procedure: Because Cawthorn’s district encompasses multiple counties, the board of elections must appoint a panel of five members from each county board of elections. (Both state and county boards are currently controlled by Democrats.) This panel may hear evidence, call witnesses “with information concerning the subject of the challenge,” and compel them to testify under oath. The panel must then determine whether Cawthorn “engaged in insurrection” within the scope of the 14th Amendment. And its decision may be appealed to the North Carolina courts—then, eventually, the U.S. Supreme Court, since it raises a federal question.

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But does a state board really have constitutional authority to enforce the disqualification clause? Magliocca, author of the definitive examination of the clause, told me that the state’s process “is not inconsistent with the 14th Amendment.” (A disclosure: As the preeminent expert on the disqualification clause, Magliocca has agreed to serve pro bono as an expert witness in this case.) In fact, there is precedent here: In the aftermath of the Civil War, the commissioners of North Carolina’s Moore County disqualified an ex-Confederate from serving as sheriff. Their decision was upheld by the state courts. North Carolina courts disqualified at least one other former Confederate during this period. In short, both state commissions (like the board of elections) and state courts have already used the 14th Amendment to prevent insurrectionists from taking office. The challenge to Cawthorn’s candidacy adheres to the text and history of the disqualification clause.

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Perhaps the biggest roadblock here is not constitutional but factual: Did Cawthorn actually engage in “insurrection”? The events of Jan. 6 appear to meet any reasonable definition of the term, as the rioters sought to disrupt a core constitutional function by attacking legislators—and, by extension, the government itself. A tougher question is whether Cawthorn himself “engaged” in the insurrection through words or deeds. And that is exactly what the challengers to his candidacy seek to determine. As Magliocca told me: “It’s up to him to prove that he did not. So we’ll see what evidence he puts forward. We’ll learn some new information, even if in the end he is found eligible to serve. And he’ll have to testify under oath.” The investigation could uncover explosive facts about Cawthorn’s alleged support for the insurrection—facts that will remain relevant even if the courts ultimately keep him on the ballot.

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Because it draws on a little-used nook of the Constitution, the challenge to Cawthorn’s candidacy might seem easy to brush off as a frivolous stunt. It is not. Monday’s complaint was spearheaded by Free Speech for People, a progressive nonprofit—but two former justices of the North Carolina Supreme Court, James G. Exum and Robert Orr, signed onto it. Without a doubt, their fight faces long odds: It is more likely than not that election administrators and state court judges will decline to stick their necks out, fearful of political backlash from Cawthorn’s “fighting” allies. But a battle for accountability so deeply rooted in the Constitution cannot be dismissed so easily.

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