Pro-Confederate law doesn’t protect Madison Cawthorn from Jan. 6 challenge, court rules

·4 min read
Saul Loeb/AP

North Carolina Rep. Madison Cawthorn lost his reelection bid last week — but that doesn’t necessarily mean a legal battle over his eligibility to serve in Congress is also finished.

On Tuesday, he lost a case in a federal appeals court over whether North Carolina elections officials have the power to ban him from running for office in the future.

Cawthorn had argued they can’t ban him, and he won that argument at trial, with a favorable ruling from a judge who was appointed by Republican President Donald Trump. But now the 4th Circuit Court of Appeals has overturned that ruling, potentially paving the way for Cawthorn to be kept off the ballot in the future if he tries to run for office again.

Opponents of the far-right Republican congressman had filed a challenge with state election officials, seeking to have Cawthorn banned from running for office. They say he supported and possibly even helped plan the Jan. 6, 2021, attack on Congress carried out by Trump supporters.

Cawthorn has denied those claims. But he said even if they are true, a law from the 1870s that gave amnesty to Confederate rebels should also apply into the future for all anti-government insurrectionists, protecting him, too.

Judge Richard Myers, one of Trump’s nominees as a federal judge in North Carolina, agreed with Cawthorn’s arguments. But on Tuesday a bipartisan panel of three appeals court judges unanimously rejected that argument and overturned Myers’ ruling.

However, they didn’t rule that Cawthorn should be banned from running for office. Their ruling simply opened the door to future challenges, making it clear that a 150-year-old law offering amnesty to some Confederate rebels can’t be interpreted as offering blanket amnesty to anyone who rebels against the government at any point in the future.

“We express no opinion about whether Representative Cawthorn in fact engaged in ‘insurrection or rebellion’ or is otherwise qualified to serve in Congress,” Tuesday’s ruling said. “... We hold only that the 1872 Amnesty Act does not categorically exempt all future rebels and insurrectionists.”

Is the case moot anyway?

At the same time, there’s another challenge going forward in the same lawsuit, as Cawthorn tries to get the issue dismissed as moot.

His critics want to keep the challenge alive, despite his recent loss, said Edward Erikson, spokesman for a group behind the challenge, Free Speech For People.

“Cawthorn himself may run for office in the future; so may others involved in the January 6, 2021 insurrection who previously took an oath of office,” he said in an email.

Erikson added that the argument needs to finish winding its way through the courts, since elections tend to move much more quickly than legal challenges.

Cawthorn’s lawyer, James Bopp, disagrees. He filed a motion in court after the primary election seeking to have the whole issue thrown out as moot.

“Rep. Cawthorn is no longer a candidate for elective office,” Bopp wrote. “Therefore, North Carolina’s challenge statute no longer applies to him and this appeal is moot.”

His opponents have until the end of the month to formally respond, and they plan to argue that the challenge can keep going, since Cawthorn could still run in the future — and “the rapid timeframe for pre-primary candidacy challenges means that there may not be adequate time for appellate review when that happens again,” Erikson said.

Legal background

Cawthorn’s actions surrounding Jan. 6 should disqualify him from serving in Congress in the future, the group of challengers said, because the 14th Amendment to the U.S. Constitution bans people from holding federal office if they previously supported an insurrection against the government.

Cawthorn has both denied the allegations and argued that even if those allegations are true, state officials still shouldn’t be allowed to keep him off the ballot.

He said the law that gives North Carolina elections officials the authority to ban people from running for office is unconstitutional. That set up a legal battle in federal courts that has been proceeding this spring, parallel to the political battle Cawthorn also faced as many fellow Republicans turned on him and supported a primary challenger, state Sen. Chuck Edwards, who won the primary a week ago.

But even though that election is now over, the question of whether the legal challenge should end as well is still lingering. In the coming months, the 4th Circuit Court of Appeals will at least rule on whether the challenge is moot, and may also rule on the broader legal arguments surrounding the 14th Amendment that the challengers have cited, as well as a pro-Confederate amnesty law from the 1870s that Cawthorn has cited in his defense.

Cawthorn has argued that state officials shouldn’t have the power in the first place to decide who can be in Congress. Instead, he argued, the decision should be up to Congress alone.

The U.S. Senate and House of Representatives can vote to expel their own members, but they rarely use that power. It has only happened twice in the last 160 years.

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