By Marshall Cohen, CNN
A federal appeals court is expected to decide soon whether to revive a longshot challenge against GOP Rep. Madison Cawthorn’s candidacy, which revolves around whether the Constitution’s ban on insurrectionists holding office should apply to him.
The liberal activists, legal scholars and anti-Trump Republicans who oppose Cawthorn asked the Fourth Circuit Court of Appeals to step in and revive their challenge that was shut down earlier this month by a lower-court judge. Cawthorn spoke at then-President Donald Trump’s January 6, 2021, rally and posted militant tweets in the run-up to the attack.
It’s unclear when the Virginia-based appeals court will weigh in on the matter. Time is running out for the anti-Cawthorn challengers ahead of North Carolina’s primary elections on May 17. Some counties will start printing ballots as soon as this week, and the first ballots will be sent to voters on March 28, according to a spokesman for the North Carolina State Board of Elections.
At least for now, the challengers won’t be getting any legal support from the state election board, which said in a filing late Monday that it will “take no position” on the challengers’ emergency request to revive the state-level proceedings.
A federal judge in Wilmington, North Carolina, previously decided that the state-level challenges can’t move forward because Congress essentially neutered the 14th Amendment’s “disqualification clause” with a blanket amnesty law in 1872. The anti-Cawthorn groups blasted the ruling from Chief Judge Richard Myers, an appointee of former President Donald Trump.
“This novel and bizarre statutory interpretation contradicts the statutory text, basic logic, legislative history, and Congress’s own understanding,” the challengers wrote, asking the appeals court to block Myers’ ruling and to let the state-level challenge proceed as planned.
But Cawthorn’s lawyers say the challengers don’t even have standing to appeal the decision. That’s because they weren’t technically a party to the lawsuit, which Cawthorn filed against the North Carolina State Board of Elections to shut down efforts to challenge his candidacy. So far, the state officials haven’t initiated any appeals.
In a court filing Monday night, the election board said it is still mulling an appeal and “reviewing” the matter. But in a blow to the challengers, the board also said that if it does decide to appeal the decision, it won’t try to fast-track the case, even with the approaching deadlines for the state to send out ballots to voters.
The election board told the appeals court that the state-level challenge, if it is allowed to proceed, would need to wrap up within roughly a week, before primary election ballots start getting printed.
Since the challenge was lodged in January, Cawthorn and his attorneys have painted it as an attempt to “cancel” him and to undermine election integrity by disqualifying him instead of beating him at the ballot box.
“Free and fair elections, and our Democratic process, are seriously undermined by allowing state bureaucrats to determine who is qualified to run on the basis of questionable, subjective, and spurious accusations of ‘insurrection,'” Cawthorn’s lawyers wrote Monday in a court filing.
If the appeals court revives the candidacy challenge, the focus will shift back to the North Carolina election board, which would be required to appoint a panel to hear the challenge. Cawthorn could be subpoenaed or deposed, and he would need to prove by a “more likely than not” standard that he did not support the January 6 insurrection or give comfort to the rioters.
Throughout the process, Cawthorn has denied wrongdoing and says he isn’t an insurrectionist.
The “disqualification clause” of the 14th Amendment of the US Constitution says elected officials who swore an oath to uphold the Constitution but then “engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof” is banned from future office. But the amendment also said Congress could wipe away this punishment with a two-thirds vote.
Congress passed the Amnesty Act of 1872, which said “all political disabilities imposed… are hereby removed from all persons whomsoever.” Cawthorn has argued, and the district judge agreed, that this applies to all insurrectionists in perpetuity. The challengers, and leading constitutional experts, say the law was a one-time grant of amnesty to former Confederates.
This story has been updated with additional developments Tuesday.
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