North Carolina officials reject Cawthorn’s claim that the Constitution’s insurgent ban no longer applies

But the state AG’s office, led by Democratic Attorney General Josh Stein, disagreed with Cawthorn’s interpretation, citing comments from lawmakers who helped pass the 1872 law and noting that Congress itself had enforced the 14th Amendment ban in 1919 against a man named Victor Berger, who was removed from office for violating the Espionage Act during World War I.

“Plaintiff’s argument is without merit, as it would invalidate the expressed intention of the legislators who enacted both the Fourteenth Amendment and the Amnesty Act of 1872,” Special Deputy Attorney General Terence Steed wrote in a file joined by three other state attorney general officials. Office.

The case is a significant early test for those seeking to impose consequences on members of Congress who adopted former President Donald Trump’s false claims about the 2020 election results. led to the attack on the Capitol last year, leaving dozens of police officers injured and disrupting the transition of power from Trump to President Joe Biden.

North Carolina has one of the most permissive laws for challenging applicants’ eligibility — usually on things like age, residency, or citizenship. By law, contestants facing challenges must defend themselves affirmatively, and the election commission determines whether the evidence warrants disqualification.

A challenge to Cawthorn’s eligibility for office was filed last month by attorneys representing Cawthorn District voters. They said Cawthorn “was involved in efforts to bully Congress and the Vice President into rejecting valid electoral votes.” And they said when he appeared at a January 6, 2021 rally that preceded the attack on the Capitol, Cawthorn would have known it was likely a prelude to violence.

These factors, they said, trigger the 14th Amendment ban on Cawthorn’s eligibility to serve in Congress.

In addition to its claim that the 14th Amendment ban is obsolete, Cawthorn’s lawsuit argues that North Carolina’s law giving the state the ability to assess its eligibility is an unconstitutional qualification for federal candidates, which are only subject to the criteria set out in the Constitution. Congress has the ultimate authority, he notes, to determine whether to seat new lawmakers.

“[T]The public interest is served in choosing the representatives of the people through democratic processes, not state bureaucrats, which the Challengers are proposing here,” Cawthorn asserts in a brief filed by prominent conservative lawyer James Bopp Jr. “The anti-democratic scheme contained in the provisions of the North Carolina Challenge supplants voters for state bureaucrats who will determine who can represent the people.

But state prosecutors say Cawthorn’s complaint is misguided. The state Board of Elections simply prevents ineligible candidates — those who do not meet the constitutional requirements to run — from appearing on the ballot. Congress may later determine that an elected legislator is ineligible to serve in the House. But state authorities have the power to assess potential candidates for office, state prosecutors say.

The crux of the state prosecutors’ argument is simply that Cawthorn’s trial is premature. The state Board of Elections gives candidates ample opportunity to defend themselves against challenges and has not issued a decision in Cawthorn’s case. Additionally, Cawthorn’s challenge comes amid a court-ordered redistricting that could affect the district Cawthorn represents, which may render the challenge against him moot.

If the challenge against Cawthorn progresses, it first goes to a three-member Board of Inquiry — appointed by the state’s Election Commission — for a decision. Once the panel issues a decision, the parties can appeal the decision to the five-member Council of State. This process, state prosecutors say, provides Cawthorn with multiple chances to defend his admissibility. His lawsuit should only be filed once that process is complete, they argue.

“[Cawthorn] made its claim before it suffered any harm,” the lawyers say. “Any procedure challenging a candidate may lead the claimant to successfully demonstrate that he is not disqualified; in this case, he would suffer no prejudice.


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