News

Appeal filed in lawsuit seeking to remove Cawthorn from ballot

By Jordan Wilkie, Carolina Public Press, Published: April 15, 2022

Legal efforts to challenge the eligibility of U.S. Rep. Madison Cawthorn, R-North Carolina, to run for Congress continued this week in federal court even as he seeks reelection in North Carolina’s westernmost district.

A group challenging the eligibility of the freshman congressman from Hendersonville filed a brief in federal court Thursday to support its appeal of judge's decision in Cawthorn's favor.

North Carolina voters, backed by the nonpartisan legal action group Free Speech for People, attempted to use a combination of state and federal laws to keep Cawthorn off the ballot back in January. The state law says any voter who suspects a candidate is not eligible for office can challenge the candidacy.

The challengers claimed Cawthorn was ineligible to seek office under Section 3 of the 14th Amendment. It says anyone who has taken an oath to the Constitution, then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” will be prevented from holding public office again.

“Challengers have reasonable suspicion that Rep. Cawthorn was involved in an effort to intimidate Congress and the Vice President into rejecting valid electoral votes and subvert the essential constitutional function of an orderly and peaceful transition of power,” read the challenge, filed with the State Board of Elections.

State proceedings were set to begin to determine whether Cawthorn indeed participated in or supported an insurrection due to his actions around Jan. 6, 2021, but they never came to be.

Cawthorn sued in federal court to block the state proceedings and won. Though Cawthorn denies having participated in an insurrection, the lawsuit didn’t actually debate those facts. It was about whether a state could review the qualifications of a federal candidate.

The judge, Richard Myers II, said a law passed by congress in 1872 invalidated enforcement of Section 3 of the 14th Amendment.

The federal District Court ruling in Cawthorn’s favor ran out the clock for the challengers, and Cawthorn is now on the ballot in the 11th District Republican primary.

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But the legal fight is not over. At least, not if Cawthorn wins the May 17 primary.

Should he lose, the challenge to his eligibility becomes moot and the cases will likely dissolve.

Should Cawthorn win the primary by earning 30% percent of the votes over his eight Republican opponents, or even advance to a run-off second primary, the challengers will still seek to disqualify him from holding office.

Free Speech for People filed an appeal with the federal Fourth Circuit Court of Appeals, which then fast-tracked the case. They will have to prove two points: that Judge Myers improperly blocked them from intervening to defend the federal case in district court, and that no reason exists under federal law why the candidate challenge shouldn’t proceed.

The challengers’ first appellate brief was filed Thursday, with a response briefing coming from Cawthorn on Monday, April 25. Then, the Court of Appeals will hear oral arguments on May 3.

Challengers point to yet another state law that describes how a candidate for office can be replaced should they become ineligible or disqualified for office between a primary and a general election. In this case, if the Cawthorn challenge is ultimately successful, the Republican executive committee for the 11th District would pick Cawthorn’s replacement, no additional election required.

For that to happen, the federal circuit Court of Appeals would have to rule in the challengers’ favor, Cawthorn’s likely appeal to the U.S. Supreme Court would need to be rejected, then the State Board of Elections would have to empanel a review board to judge the challengers’ claims and rule in their favor. Then, Cawthorn would have the right to appeal to the State Board of Elections itself, then the state Court of Appeals.

The legal fight appears far from over, but each step in the process is scheduled to happen quickly, at least compared to usual court timelines.

The State Board of Elections is the named defendant in Cawthorn’s federal case, and the Board decided against appealing Judge Myers’ decision on its own.

“​​Under the ruling, the State Board maintains the authority under North Carolina law to hear all other candidate challenges, including challenges of congressional candidates on grounds other than Section 3 of the 14th Amendment,” said Pat Gannon, spokesperson for the Board.

The Board will “provide any information needed to the courts” as needed in the ongoing federal appeals, Gannon said.

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Republished courtesy of Carolina Public Press.