Cawthorn Sues NC Election Board to Block Inquiry Into Jan. 6 Role

RALEIGH, N.C. — Rep. Madison Cawthorn, R-N.C., sued the North Carolina State Board of Elections on Monday hoping to stop a challenge of his eligibility to run for reelection to Congress based on his alleged actions related to the Jan. 6, 2021, siege on the U.S Capitol.

The challenge to Cawthorn’s eligibility to run for reelection was filed by registered voters in North Carolina’s 13th Congressional District who are citing a provision of the 14th Amendment, known as the disqualification clause, that states, “No person shall be a … representative in Congress … who, having previously taken an oath, as a member … shall have engaged in insurrection or rebellion against the same.”

“Persons who trigger this constitutional provision are disqualified from congressional office, just as persons who fail to meet the age, citizenship and residency requirements of Article I, Section 2, of the Constitution are disqualified from congressional office,” the plaintiffs say.

They go on to cite a decision the North Carolina Supreme Court handed down in the immediate aftermath of the Civil War, which stated, “The oath to support the Constitution is the test.” 

“The idea being that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress,” the decision in Worthy v. Barrett said. 

The plaintiffs claim Cawthorn, who spoke at the Ellipse outside the White House on Jan. 6 before the crowd moved on the Capitol, was voluntarily involved in activities intended “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.”

They say enough circumstantial evidence exists, in the form of Cawthorn’s words, tweets and “reports that he met with planners of the Jan. 6 demonstration, and possibly of the assault on the Capitol beforehand,” to suggest he was directly involved in planning either the pre-attack demonstration or even the attack itself.

“Collectively, Cawthorn’s actions and the events of Jan. 6 provide reasonable suspicion that, under the disqualification clause, he is constitutionally disqualified from running for congressional office,” they say.

In a lawsuit filed on Monday, Cawthorn states that he “vigorously” denies that he engaged in “insurrection or rebellion” against the United States, but then largely ignores the allegations against him.

Instead he argues the State Board of Elections has no authority to keep him off the ballot, that the challenge against him should be dropped, and that the state law allowing for such challenges should be ruled unconstitutional.

“’If successful, a challenge to his candidacy would prevent him from running for Congress, which is quintessential First Amendment activity,’” Cawthorn said, quoting from the complaint.

Later, after arguing, among other things, that the plaintiffs lack standing to even raise the challenge to his candidacy, he returns to the same theme, saying, “Running for political office is quintessential First Amendment activity and afforded great protection.” 

In footage broadcast by C-SPAN from the Ellipse outside the White House on Jan. 6, Cawthorn, who uses a wheelchair, was clearly jubilant at the response he received from the boisterous crowd.

“Oh, wow, this crowd has some fire in it … and I am so thankful to each and every single one of you for coming down,” he said.

“You know, I just rolled down from the Capitol Building, about two miles away, down Pennsylvania Avenue … and I will tell you the courage that I see in this crowd is not represented on that Hill,” he continued.

Cawthorn goes on to tell the crowd that the “Democrats, with all the fraud they have done in this election, and the Republicans hiding and not fighting … they are trying to silence your voice. … Make no mistake about it. They do not want you to be heard.

“My friends, I will tell you right now that there is a new Republican Party rising. The founders of our great country saw to it that the people who consent to be governed should have a voice in that government,” he said. “And I can confidently say this crowd has the voice of lions.”

Looking out into the crowd, Cawthorn says he can see a number of his congressional colleagues who were preparing to go back to Capitol Hill and contest the election.

“But my friends, bear in mind there is a significant portion of our party that says we should just sit idly by and sit on our hands. They have no backbone,” he said.

“Do we love Donald Trump?” he asked, eliciting a loud cheer from the crowd. “My friends, we’re not doing this just for Donald Trump. We are doing this for the Constitution. Our Constitution was violated. … My friends, I encourage you to go back to your states after today, [and] hold your representatives accountable. Make sure that they stood up for election integrity and make your voices heard.”

Patrick Gannon, a spokesman for the North Carolina State Board of Elections, said no date has been set for a possible hearing on the Cawthorn matter, as a state superior court has suspended consideration of candidate challenges pending final resolution in the litigation of redistricting cases North Carolina League of Conservation Voters v. Hall and Rebecca Harper v. Hall.

The original challenge to Cawthorn’s eligibility to run for reelection was filed with the state board of elections on Jan. 10, and it had scheduled a special meeting for just two days later, to hear the Cawthorn case.

The panel would have been composed of local board of elections officials who would then be tasked with deciding whether the storming of the U.S. Capitol was an “insurrection” under the constitutional definition of that word, and then whether the congressman took part in it or aided those who did.

In accordance with the superior order, however, the State Board of Elections canceled its meeting, and consideration of the Cawthorn challenge was postponed until after the resolution of the redistricting cases.

Should Cawthorn ultimately fail to block the proceeding, a number of wildcards come into play that could determine its outcome. The first is that under North Carolina law, a plaintiff that files a challenge against a candidate is allowed to depose the candidate and subpoena documents relevant to the case.

In addition, due to reforms in the candidate challenge law passed with bipartisan support in North Carolina nearly 20 years ago, the burden of proof in such challenge cases is on the candidate, not the challengers — an inversion of what is typical under state law.

And when all is said and done, all records developed during the inquiry process in North Carolina can then be used by other investigative bodies, like the House Select Committee currently investigating the events surrounding the siege.

Lastly, if the outcome of the redistricting cases results in significant changes to the 13th Congressional District while his case is pending, Cawthorn could decide to refile his candidacy in another district. If he did, the challengers would have to refile their case in his new district.

Candidate filing for North Carolina’s 2022 primary elections, as well as rescheduled municipal elections, is set to resume on Thursday, Feb. 24, and end at noon on Friday, March 4.

The revised filing dates were set by the Wake County Superior Court in mid-January after a three-judge panel upheld state legislative and congressional district maps being challenged in redistricting-related lawsuits.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue