A group of North Carolina voters filed an unusual legal challenge Monday, asking the North Carolina State Board of Elections to determine whether Republican Rep. Madison Cawthorn is eligible to run for re-election to the U.S. House of Representatives later this year.
The issue isn’t whether Cawthorn meets the Constitution’s age and residency requirements; clearly, he does. Rather, the challenge claims that Cawthorn is ineligible by dint of the 14th Amendment’s disqualification clause: a post-Civil War provision that provides that one cannot serve in Congress if you “have engaged in insurrection or rebellion against the same, or given aid or comfort to [those engaged in such acts].”
If these allegations are true, the challenge concludes, Cawthorn is constitutionally disqualified from serving in Congress.
Across 34 pages, the complaint alleged that Cawthorn “was involved in efforts 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” and “was involved in either planning the attack on January 6, or alternatively the planning of the pre-attack demonstration and/or march on the Capitol with the advance knowledge that it was substantially likely to lead to the attack, and otherwise voluntarily aided the insurrection.” If these allegations are true, the challenge concluded, Cawthorn is constitutionally disqualified from serving in Congress — and, thus, from running for re-election to Congress under North Carolina law.
As Mark Joseph Stern noted in Slate, North Carolina law puts the burden on the candidate to prove his eligibility — so Cawthorn will have to demonstrate, by “a preponderance of the evidence” (a legal standard that usually means “more likely than not”), either that he was not involved in those efforts as a factual matter or that those efforts don’t meet the 14th Amendment’s legal criteria of “engag[ing] in insurrection” or “giv[ing] aid or comfort” to those involved in the Jan. 6 attack.
If that’s how the litigation unfolds in North Carolina, then it’s not hard to imagine the fireworks that could arise. And if the challenge succeeds, it could become a model for similar attempts by voters in other states to seek to disqualify other members of Congress who publicly encouraged and incited — and may have privately facilitated — the violence on Jan. 6. In that respect, the Cawthorn challenge is a fascinating test case for state disqualification procedures — and for the idea that the 14th Amendment’s disqualification clause could be enforced against those involved in Jan. 6 through state elections suits.
Less obviously, the Cawthorn suit might set an even more important precedent: reaffirming the power of each chamber of Congress to simply refuse to seat members who were involved in the Jan. 6 attack — if and when they next begin a congressional term. Although the Constitution allows each chamber of Congress to expel individual members, expulsion requires the concurrence of a two-thirds majority — an impossible bar to meet these days (only one member of Congress has been expelled since 1980). Expulsion for those with ties to Jan. 6 is thus not in the cards.
But at various points in the country’s first 180 years, each chamber also exercised the power to “exclude” members-elect — to refuse to seat them at the beginning of the new Congress, whether because they were not duly elected, they were not qualified to hold office or they had committed some other misconduct. Unlike expulsion, exclusion requires only a majority vote.
In 1969, however, the Supreme Court ruled in Powell v. McCormack that “the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote,” so Congress may only exclude members-elect if they fail to meet “the qualifications expressly set forth in the Constitution.” In that case, the only qualifications the court pointed to were those set out in Article I, Section 2, Clause 2: “No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”
Since that 1969 decision, courts have had no opportunity to consider how the Supreme Court’s analysis interacts with the disqualification clause of the 14th Amendment. But the Cawthorn case illustrates how the argument would go: If an individual is disqualified from serving in Congress because of an express constitutional provision, does it not follow that, in the Supreme Court’s words, they therefore fail to meet “the qualifications expressly set forth in the Constitution”? Put another way, is compliance with the disqualification clause itself one of the express qualifications for office imposed by the Constitution?
One way or the other, the Cawthorn case will have to answer this question — because the entire theory rests on the voters’ claim that Cawthorn is not “qualified” for office.
One way or the other, the Cawthorn case will have to answer this question — because the entire theory rests on the voters’ claim that Cawthorn is not “qualified” for office. Presumably, to side with the voters, the North Carolina State Board of Elections (and, eventually, the courts) would have to agree that the disqualification clause is a standalone qualification to hold federal office.
If that is the bottom line, then it could have implications far beyond Cawthorn. It would give each chamber a legal precedent if, on Jan. 3, 2023, a majority refused to seat those members elected or re-elected in November who played a role in the events of Jan. 6. It might also be used for mischief — if, say, a majority were to make up reasons why a member-elect was disqualified under the 14th Amendment. If anything, that would suggest, contra the argument of at least one scholar, that it’s better for these issues to be resolved through state judicial proceedings than through congressional votes.
Either way, it would also add even more significance to the work of the House’s Jan. 6 committee — the final report of which could be used as supporting evidence for such votes. One way or the other, the challenge to Cawthorn’s candidacy could therefore have enormous implications not just for the 26-year-old first-term congressman, but for any members who played some part in the tragic and tumultuous events of last January — and for how the long-moribund disqualification clause of the 14th Amendment is enforced going forward.