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Tipsheet

Another Legal Challenge Trying to Ban Duly-Elected GOP Congressman from Running for Office Has Failed

Madison Cawthorn Campaign

On Friday, a federal judge halted an effort to disqualify Rep. Madison Cawthorn (R-NC) from running for office, based upon claims he ought to be barred from doing so according to the 14th Amendment. Lawsuits charged Cawthorn was an "insurrectionist" who supported those who participated in the Capitol riot on January 6, 2021.

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As Jonathan Weisman reported for The New York Times, U.S. District Judge Richard E. Myers II, who was appointed by President Donald Trump, blocked an effort from a group of North Carolinians and their lawyers seeking to have the North Carolina Board of Elections declare him to be ineligible to run. 

While the lawsuit claimed that a third section of the 14th Amendment barred Cawthorn from running, Judge Myers agreed with Cawthorn's lawyer, James Bopp Jr., that that section was rendered moot by subsequent legislation, in the Amnesty Act of 1872, which sought to forgive sympathizers of the Confederacy:

That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Judge Myers sided with the argument of James Bopp Jr., a prominent conservative campaign lawyer, who noted that section three concluded with a caveat: “Congress may by a vote of two-thirds of each House, remove such disability.” The Amnesty Act of 1872 did just that when it declared that “all political disabilities imposed by the third section” of the 14th amendment were “hereby removed from all persons whomsoever.”

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While the petitioners tried to argue that this only applied to sympathizers of the Confederacy, Judge Myers was not of the same mind. "But Mr. Bopp said on Friday that, because the 14th Amendment applied to past and future insurrections, so did the subsequent amnesty. Judge Myers, a former law professor at the University of North Carolina and clerk at the U.S. Court of Appeals for the District of Columbia Circuit, agreed," Weisman went on to write. 

While Bopp says he wouldn't underestimate lawyers, the path for an appeal seems tricky:

Mr. Fein called for the ruling to be appealed, but the activists who brought the challenge cannot do that. Since the injunction was aimed at the state, only the North Carolina State Board of Elections or the state attorney general can appeal, and it is not clear that either will get involved. 

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Mr. Cawthorn turned to the federal courts to intervene before the Board of Elections could set a hearing to determine his eligibility for the ballot.

The effort to block Mr. Cawthorn from running for re-election could now be over.

But, Mr. Bopp said, “I never underestimate the willingness of lawyers to keep fighting.”

Cawthorn, from his campaign account, retweeted many of those celebrating the outcome of the case. He also tweeted out "HUGE VICTORY!" 

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To call a congressman an "insurrectionist," may be a loaded charge to begin with, but now a judge has found there are holes in the legal basis of the argument as to why Cawthorn should be barred from office.

Bopp is cited in a previous article from Weisman as well, from January 25, 2022:

Mr. Bopp, in an interview, declared the matter “the most frivolous case I’ve ever seen,” but allowed that what he called an “unethical” exploitation of North Carolina law by “competent” lawyers could pose a real threat to Mr. Cawthorn — and by extension, to others labeled “insurrectionists” by liberal lawyers.

“This is the real threat to our democracy,” he said. “Just by bringing the complaint, they might jeopardize a member of Congress running for re-election.”

“They have multiple targets,” he added. “It just so happens that Madison Cawthorn is the tip of the spear.”

That is because North Carolina’s election statute offers challengers a remarkably low bar to question a candidate’s constitutional qualifications for office. Once someone establishes a “reasonable suspicion or belief” that a candidate is not qualified, the burden shifts to the officeseeker to prove otherwise.

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There is much that is known. Whether it makes Mr. Cawthorn an “insurrectionist” would have to be determined by North Carolina’s Board of Elections, or more likely, by the state’s courts, where the board might punt the matter.

Weeks after the 2020 election, Mr. Cawthorn told a conservative gathering to “call your congressman” to protest the results, adding, “you can lightly threaten them.” He promoted the “Save America” rally behind the White House on Jan. 6, writing on Twitter, “the future of this Republic hinges on the actions of a solitary few,” then adding “It’s time to fight.” At the rally, he riled the crowd from the stage with talk of election “fraud.”

He later called those jailed for storming the Capitol “political hostages” and “political prisoners” that he would like to “bust” out of prison.

“The 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,” he would later say in Franklin, N.C. He added, “If our election systems continue to be rigged, and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed.” 

Mr. 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: “Congress may by a vote of two-thirds of each House, remove such disability.” Congress did just that, he said, with the Amnesty Act of 1872 that declared, that “all political disabilities imposed by the third section” of the 14th amendment were “hereby removed from all persons whomsoever.”

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Last month, the Indiana election commission also unanimously tossed out a longshot effort from a longshot candidate,  Aaron "AJ" Calkins who attempted to get Rep. Jim Banks (R-IN) banned from running for office, by  claiming "Violation of 14th Amendment Supporting An Insurrection."

Rep. Cawthorn, who was elected in 2020 to represent North Carolina's 11th district with 54.5 percent of the vote, will now be running in the newly created 13th district. As Avi Bajpai reported last week for The News & Observer, challenges to Cawthorn cannot move forward so long as he is running in this district. 

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