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Cawthorn hopes a federal court will block the voter challenge against him

Rep. Madison Cawthorn, R-N.C., is seen here speaking during the 2021 Conservative Political Action Conference in Dallas.
Brandon Bell
Getty Images
Rep. Madison Cawthorn, R-N.C., is seen here speaking during the 2021 Conservative Political Action Conference in Dallas.

A hearing in federal district court Friday could keep some North Carolina voters from challenging the candidacy of a freshman Congressman seeking reelection in the western part of the state.

The challengers allege Rep. Madison Cawthorn (NC-11) should be disqualified from running because he violated his oath to uphold the U.S. Constitution by participating in an insurrection.

Under state law in North Carolina, a voter may file a challenge on a "reasonable suspicion or belief" that the candidate "does not meet the constitutional or statutory qualifications for the office." Typically, such a challenge would involve something easily verifiable, like residency, or age. But in the case of Madison Cawthorn, a congressman known for pro-Trump, incendiary statements, it involves his alleged efforts to interfere with the Constitutional transfer of power and certification of Joe Biden's electoral victory in the 2020 presidential election.

"Cawthorn, in varying ways and forms, through statements and actions, supported and engaged in that attempt to stop the certification of the votes," said former North Supreme Court Justice Robert Orr, one of the attorneys who has helped file the candidate challenge against Madison Cawthorn. Orr is a former Republican who, in a break with the GOP during the Trump era, re-registered as an Unaffiliated voter.

The challengers claim Cawthorn violated the U.S. Constitution's 14th Amendment by joining the effort to overturn the 2020 presidential election, as evidenced by his statements before, during and after the Jan. 6, 2021, riot and violent storming of the Capitol.

Cawthorn Calls Jan. 6 Rioters "Political Hostages"

In social media posts and public statements, Cawthorn has declared his objection to, and questioned the integrity of, the 2020 election outcome.

In December of 2020, for example, he appeared before a young audience at a gathering of the conservative group Turning Point USA and pledged to contest certification of the results, denounced Republicans who did not oppose the certification, and encouraged attendees to "feel free to lightly threaten" Congress members who failed to fight for what he called "election integrity" by taking that position.

Then, on Jan. 6, 2021, Cawthorn was a featured speaker at the pro-Trump rally in Washington, D.C. that precipitated the storming of the Capitol, a riot aimed at stopping certification of the previous November's election results. And since then, Cawthorn has called people detained for participating in the Jan. 6 insurrection as "political hostages."

Written after the Civil War, Article XIV, Section 3 says no person who previously has taken an oath to uphold the Constitution shall serve in Congress if they "engaged in insurrection or rebellion against the same."

Cawthorn Switches Districts, Challenge Follows

A challenge against Cawthorn's candidacy was originally filed in the 13th Congressional District, which, under a previous map, included part of Mecklenburg County, as well as Gaston, Rutherford, Polk, Burke, McDowell and Cleveland counties. Cawthorn raised eyebrows with his planned move to that district because it did not include his home county of Henderson; it necessitated a switch from the 11th District, which he currently represents; and it forced the powerful and longtime Republican Speaker of the State House, Tim Moore, of Cleveland County, to abandon any plans for a possible congressional run.

But the Congressional map that contained that version of the 13th Congressional District was thrown out by the North Carolina Supreme Court last month. The Court's Democratic 4-3 majority found the North Carolina General Assembly's Republican majority had violated fundamental rights under the state Constitution by gerrymandering the districts with extreme partisan intent.

The replacement map approved by the state Supreme Court — drawn by court-appointed Special Masters, not legislators — moved things around and Cawthorn has decided to re-file for a re-election run back in the 11th Congressional District. However, House Speaker Tim Moore and his fellow legislative Republicans have appealed to the U.S. Supreme Court asking them to strike down that Congressional map and replace it with a plan drawn by GOP state lawmakers. They argue that the federal Constitution's Elections Clause, in Article I, Section 4, gives state legislatures, not courts, the sole authority to regulate the time, place and manner of elections, including the drawing of district maps.

On Wednesday, after Cawthorn's re-filing to run in the 11th Congressional District, a new candidate challenge was filed by voters in that area.

Cawthorn Says His Constitutional Rights Are Under Attack

Meanwhile, Cawthorn wants a federal district court to intervene and keep the voter challenge from derailing his candidacy.

In a filing with the Eastern District of North Carolina, Cawthorn "vigorously denies" the factual allegations in the candidate challenge that he engaged in an insurrection or rebellion, but he argues the statute under which the challenge was filed would violate his First Amendment free speech rights by denying him the right to run for office.

Cawthorn's suit seeks injunctive relief from the court, asking it to block the State Board of Elections from moving forward with the challenge to his candidacy. Under the governing statute, the state board would have to assemble a panel of local elections officials from counties in the respective district to hold a hearing on the candidate challenge. The panel's decision could then be appealed to the State Board of Elections and from there it could go up the state Court of Appeals.

According to Prof. Greg Wallace, who teaches Constitutional Law at Campbell University, Cawthorn's argument could have merit.

"Because the federal Constitution designates each house of Congress as the final judge of the qualifications of its members," Wallace, said, referring to the Qualifications Clause, in Article I, Section 5.

There is at least one instance of a candidate in North Carolina being disqualified from running for office due to his participation a rebellion. In 1869, the state Supreme Court ruled, in a case known as Worthy v. Barrett, a candidate for sheriff of Moore County, who had previously served in that capacity under the Confederacy during the Civil War, was properly disqualified.

For several reasons, Cawthorn argues, the statutory challenge to his candidacy violates his due process rights under the U.S. Constitution. Once a challenge is filed, the statute shifts the burden of proof to the candidate, who must show by a preponderance of the evidence that he or she is qualified to be a candidate for the office.

Cawthorn's filing notes that while the statute is clear on what kind of evidence must be presented to prove residency, there is no guidance when it comes to disproving one's alleged participation in a rebellion. Cawthorn also claims in his suit that reasonable suspicion — the level of certainty a voter needs to trigger a candidate challenge — is too low a bar to infringe on the fundamental First Amendment right to run for office

Candidate Challenge Or Not, Cawthorn Could Face Tough GOP Primary

U.S. District Court Judge Richard E. Myers II, who is presiding over Friday's hearing on Cawthorn's suit, is a Trump appointee and former law professor at UNC-Chapel Hill.

In the end, it could be good old politics that keeps Cawthorn from returning to Congress.

While Cawthorn seemed to have a fairly clear path to a GOP nomination in the short-lived 13th Congressional District under the now discarded map, he faces some experienced Republican challengers in the 11th. Those challengers include state Sen. Chuck Edwards and the district's former GOP Chair, Michele Woodhouse. Before he returned to the 11th for a re-election run under the latest Congressional map, Cawthorn had backed Woodhouse for the seat.

Rusty Jacobs is WUNC's Voting and Election Integrity Reporter.
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