Cawthorn Insurrection Challenge Revived by New Voter Complaint

A federal court hearing has been scheduled for Friday after two North Carolina voters filed a new petition to disqualify Rep. Madison Cawthorn (R-N.C.) from seeking re-election, on grounds that he participated in the U.S. Capitol insurrection.

The voters’ action resurrects a novel legal challenge that has dragged on for weeks as the state redrew its congressional maps, Cawthorn filed a federal lawsuit to block attempts to oust him, and state election officials dismissed an earlier challenge by voters for lack of legal standing.

U.S. District Court Judge Richard E. Myers had previously set a March 21 hearing on Cawthorn’s motion for an injunction to stop the North Carolina State Board of Elections from investigating any voter claims against his candidacy. The accelerated schedule, despite a Thursday filing by the election board stating that it has put any Cawthorn challenges on hold, signals the much-watched case may be nearing a conclusion.

The challenges revolve around the 14th Amendment of the Constitution, Section 3, which prohibits any official, after taking the oath of office, to hold office if found to “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Voters, backed by the advocacy group Free Speech for People, argue that Cawthorn, who spoke at a rally before the Jan. 6, 2021, assault on the U.S. Capitol and offered strong support for rioters charged in the aftermath, fits that definition.

Under North Carolina law, the election board has a right to hold hearings and force Cawthorn to turn over phone records and other information surrounding the Jan. 6 events. The law also puts the burden of proof on the challenged candidate to prove he is not an insurrectionist.

Cawthorn’s attorney, James Bopp Jr., said in court papers and an interview that the case against his client is flawed for a number of reasons, including that Cawthorn didn’t do anything wrong.

“Factually, their allegations involve statements made at a rally such as ‘go fight for your political rights.’ That’s the type of hyperbole that does not involve any physical actions, and that’s protected by the First Amendment,” Bopp said in the interview.

“He spoke at a rally and a few thousands of those there went to the Capitol, and a few hundred attacked the Capitol,” Bopp said. “And as despicable as it was, he wasn’t part of it.”

In his federal court motion for an injunction against the election board, Bopp argued that the North Carolina election board, made up of three Democrats and two Republicans, has no right to determine who is an insurrectionist or disqualify a sitting member of Congress.

Only the House of Representatives can determine whether to seat the winner of an election, Bopp argued, a point echoed by several Constitutional scholars.

The winding case has been made more complicated by North Carolina’s ongoing redistricting process. Cawthorn originally filed to run in a newly drawn District 13, prompting a challenge by voters there. When the North Carolina Supreme Court invalidated that district, the voter challenge was dismissed by the election board.

Now that Cawthorn has filed to run in District 11, which he represents now, the new challenge surfaced.

In a Thursday filing, the board of elections told Judge Myers that it has put all challenges against Cawthorn on hold pending a new lawsuit by Republicans asking the U.S. Supreme Court to intervene in the redistricting fight.

Myers, in his scheduling order, set the hearing anyway.