Don't Underestimate the Legal Challenge to Madison Cawthorn's Reelection

[Nevilledog]

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Laurence Tribe
@tribelaw
This 14A3 challenge can’t be ignored. The court cannot duck it just because Congress hasn’t created a federal structure to implement the 14th Amendment’s mandatory disqualification of insurrectionists: each state is duty-bound by Art VI to abide by Sec. 3

slate.com
Don’t Underestimate the Legal Challenge to Madison Cawthorn’s Reelection
The congressman may have to prove, under oath, that he did not facilitate the insurrection.
1:35 PM · Jan 16, 2022

https://slate.com/news-and-politics/2022/01/madison-cawthorn-insurrection-disqualify-reelection.html

*snip*

Just as the board of elections can adjudicate ineligibility due to age, Cawthorn’s opponents argue, it can adjudicate ineligibility due to insurrection. Once again, state law lays out the procedure: Because Cawthorn’s district encompasses multiple counties, the board of elections must appoint a panel of five members from each county board of elections. (Both state and county boards are currently controlled by Democrats.) This panel may hear evidence, call witnesses “with information concerning the subject of the challenge,” and compel them to testify under oath. The panel must then determine whether Cawthorn “engaged in insurrection” within the scope of the 14th Amendment. And its decision may be appealed to the North Carolina courts—then, eventually, the U.S. Supreme Court, since it raises a federal question.

But does a state board really have constitutional authority to enforce the disqualification clause? Magliocca, author of the definitive examination of the clause, told me that the state’s process “is not inconsistent with the 14th Amendment.” (A disclosure: As the preeminent expert on the disqualification clause, Magliocca has agreed to serve pro bono as an expert witness in this case.) In fact, there is precedent here: In the aftermath of the Civil War, the commissioners of North Carolina’s Moore County disqualified an ex-Confederate from serving as sheriff. Their decision was upheld by the state courts. North Carolina courts disqualified at least one other former Confederate during this period. In short, both state commissions (like the board of elections) and state courts have already used the 14th Amendment to prevent insurrectionists from taking office. The challenge to Cawthorn’s candidacy adheres to the text and history of the disqualification clause.

Perhaps the biggest roadblock here is not constitutional but factual: Did Cawthorn actually engage in “insurrection”? The events of Jan. 6 appear to meet any reasonable definition of the term, as the rioters sought to disrupt a core constitutional function by attacking legislators—and, by extension, the government itself. A tougher question is whether Cawthorn himself “engaged” in the insurrection through words or deeds. And that is exactly what the challengers to his candidacy seek to determine. As Magliocca told me: “It’s up to him to prove that he did not. So we’ll see what evidence he puts forward. We’ll learn some new information, even if in the end he is found eligible to serve. And he’ll have to testify under oath.” The investigation could uncover explosive facts about Cawthorn’s alleged support for the insurrection—facts that will remain relevant even if the courts ultimately keep him on the ballot.

Because it draws on a little-used nook of the Constitution, the challenge to Cawthorn’s candidacy might seem easy to brush off as a frivolous stunt. It is not. Monday’s complaint was spearheaded by Free Speech for People, a progressive nonprofit—but two former justices of the North Carolina Supreme Court, James G. Exum and Robert Orr, signed onto it. Without a doubt, their fight faces long odds: It is more likely than not that election administrators and state court judges will decline to stick their necks out, fearful of political backlash from Cawthorn’s “fighting” allies. But a battle for accountability so deeply rooted in the Constitution cannot be dismissed so easily.

*snip*

[Cha]

1. Rt TY.. I didn't know Gaslit

Fascist Cawthron was in a wheelchair... I just looked it up as to why.

[FBaggins]

2. Feel free to underestimate it. It's nonsense

Tribe is either having fun with us or playing some other game- because Congress did create a structure for handling this.

Insurrection is a federal crime. State boards of election have exactly zero to do with determining guilt or innocence of such crime. And if they tried they would be blocked by the first federal court to hear the challenge.

This amounts to “we say that he’s guilty of a crime and you need to put him under oath and have him prove that he’s innocent before he can run” - which bears no resemblance to our system of Justice.

[brooklynite]

3. Cawthorn hasn't been shown to have engaged in rebellion or sedition...

If any Board of Election chose to deny him a ballot position based on that claim, it would be quickly thrown out in Court.

[Sympthsical]

4. I don't underestimate it. I dismiss it entirely.

Why do we get wrapped up in these things?

Certain attorneys need to step away from Twitter for a bit. Got too used to the attention and just throws things out there without the slightest bit of plausibility.

"It could happen!" Yes, and the earth could crash into the sun. It's not going to any time soon, though.