Rep. Madison Cawthorn (R-NC) is controversial, to say the least; see his profile here.
And while he’s not popular everywhere, he’s certainly popular in his district; in 2020, he easily defeated a retired Air Force colonel and former Guantanamo prosecutor, 54%-42% (details here).
Some of his constituents want to prevent him from running again. Why not just let the voters decide? Good question.
The short answer is not whether they should take that decision away from voters, but because maybe they can. But if you wish to ask the “should” question, you ought to put it in context: There are places in our country today where a majority of voters may support insurrection, just as entire states (North Carolina was one of them) supported it 160 years ago.
The Civil War amendments included the following language:
Amendment 14, Section 3. “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”
This was intended to keep ex-Confederates from holding federal office, but it’s still part of the Constitution, and could apply to modern-day rebels. The argument is that during the events surrounding the Capitol riot, Cawthorne either participated in insurrection, or provided aid to insurrectionists.
This is based on “reasonable suspicion” that “he or his office coordinated with the Jan. 6 organizers” and thereby “aided the insurrection” of January 6, 2021, according to the group petitioning the North Carolina Election Board to disqualify him from seeking re-election. If he did, that constitutional language could apply to him, because Cawthorn took his seat in Congress, and oath of office, on January 3, 2021, three days before the Capitol riot.
But that’s not an easy hill to climb. For the disqualification to apply, the petitioners must establish the Capitol riot was an “insurrection” in a legal, not just a vernacular, sense, and then must prove Cawthorn’s actions, whatever they were, consisted of either participating in or “aiding” the insurrection. And keep in mind this gets tricky, because the events of Jan. 6 consisted of both legal protest and illegal rioting, and it’s not enough that Cawthorn participated in or aided the protests. He must be connected to the rioting for these charges to stick.
Cawthorn, predictably, and perhaps correctly, argues his activities were protected free speech. I think anything he said after the riot would fall in that category, because it couldn’t have contributed to causing the riot. The relevant question is whether he helped make it happen, or egged it on while it was happening. That’s a question of what the evidence would show in a disqualification hearing, and would be for the Election Board to decide.
The immediate question is whether the Election Board can hold such a hearing. It appears to be in a strong position. It argues, “States have long enforced age and residency requirements …. The State has the same authority to police which candidates should or should not be disqualified per Section 3 of the Fourteenth Amendment.”
This is little different from determining voter eligibility; I don’t see a logical distinction between states deciding who can be a candidate, and who can vote. Definitional questions (was it an “insurrection”?) and free speech rights (was it protected speech, or incitement?) can be dealt with in the hearing process, and subsequent appeals to North Carolina courts.
Cawthorn has sued the Election Board to block any such hearing. The question at this stage is not whether he should be kept off the ballot, but whether the Election Board can decide that issue. There’s no due process issue at this point, but Cawthorn could challenge the fairness of the proceeding if the Election Board is allowed to proceed. This is solely about whether the Election Board has such authority. I don’t see how he wins on that issue.
If he loses, determining whether the Capitol riot was an “insurrection,” and whether he “aided” it, comes later. If that’s what the decision is, I don’t think it’s taking things too far. If it’s an objective decision based on evidence, then it’s not political or partisan; and since it’s written into the U.S. Constitution, it’s part of our laws governing elections and eligibility for public office.
It would also make a statement that violent attempts to overthrow our democratic system of elections won’t be tolerated, and regardless of what happens to Cawthorn, I think that statement needs to be made — in the prosecution of Capitol rioters, disciplinary actions against lawyers who plotted to overthrow the election, and cracking down on individuals who threaten or intimidate election officials and workers.
And as the body of evidence grows, lurking in the background is the possibility that Trump, too, could be labeled an insurrectionist and barred from holding federal office in the future. Even if that has to be done state-by-state, and happens in only a few states, it would deprive him of those states’ electoral votes and that could put the White House out of his reach.