RALEIGH, N.C. — North Carolina Rep. Madison Cawthorn, whose eligibility to run for reelection to Congress is being formally challenged, has now begun his legal fight against that effort.
Aside from a blanket one-sentence denial, Cawthorn does not address the allegations against him — namely, that he supported and possibly even helped plan the Jan. 6, 2021, attack on Congress by supporters of Republican President Donald Trump attempting to overturn the results of the 2020 election.
Rather, his lawsuit says the N.C. State Board of Elections has no authority to keep him off the ballot in the first place, and so the challenge against him should be dropped and the state law allowing for such challenges should be ruled unconstitutional.
"Running for political office is quintessential First Amendment activity and afforded great protection," his lawsuit says.
Cawthorn, a Republican who represents Western North Carolina, has created a national following among the far-right wing of the party.
In an interview with the conservative Daily Caller website Monday, the same day he filed the lawsuit in federal court, Cawthorn advanced the conspiracy theory that the Jan. 6 attack was conducted by the FBI or other parts of the Trump administration to discredit Trump.
"There were members of the federal government who were deeply involved in this," he said.
Those challenging his eligibility said that if any members of the government were involved in the attack, it was actually Cawthorn and potentially other GOP politicians helping far-right militias and other groups plan the attack.
Specifically, they say there's reason to suspect that "Cawthorn was involved in planning 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."
He should have to undergo a deposition to answer questions about his role in the attack if he wants to be able to run for office again, the challenge states — something Cawthorn's lawsuit Monday says violates his constitutional rights.
What happened on Jan. 6?
Shortly after the 2020 election, on the same day Congress was gathered for its usually perfunctory duties of certifying the election results, hundreds of Trump supporters broke into the Capitol building. They wanted to pressure members of Congress into voting to ignore the election results from states that Democratic candidate Joe Biden had won, and keep Trump in office.
Trump said in a written statement Sunday that his goal was to overturn the election, but that it failed because Vice President Mike Pence wouldn't go along with the plan.
"Unfortunately, he didn't exercise that power, he could have overturned the Election!" Trump wrote.
Numerous Republican politicians, including Cawthorn and most of North Carolina's other Republican lawmakers, voted to do what the mob wanted. But the challenge against Cawthorn singles him out for having gone a step further. It says that at the very least he encouraged the crowd that day to get violent, and that he potentially also worked directly with organizers of the attack beforehand to help plan it.
Trump, Cawthorn and others on the right claim there was widespread fraud in states Trump lost.
However, they have never been able to prove it despite massive amounts of attention and money— including over half a billion taxpayer dollars — spent on unsuccessful efforts to find fraud.
Confederates and civil rights
The challenge against Cawthorn's eligibility is based on the 14th Amendment to the U.S. Constitution, and specifically a section of it that was intended to bar former members of Congress who fought for the Confederacy in the Civil War from returning to Congress after the war.
But the amendment is most famous for different sections, guaranteeing civil rights protections like due process to all Americans regardless of their skin color, and Cawthorn cites those protections as a reason why the other section — banning those who engaged in an insurrection against the government from holding office — should not apply to him.
Specifically, he says it's because of the way the state law is worded. When candidates are accused of being ineligible for office, the state puts the burden of proof on the accused rather than on the accuser. That's the opposite of how it works in criminal trials.
"Here, Rep. Cawthorn is required to produce countervailing evidence to prove a negative (i.e., he did not engage in an insurrection), based upon nothing more than the Challenger's 'reasonable suspicion,'" the lawsuit says. "Such a burden shifting requirement, as applied to Rep. Cawthorn here, violates his constitutional rights to due process clause under the Fourteenth Amendment."
The challengers against Cawthorn, led by two former N.C. Supreme Court justices, have hoped to use the state's process for determining a candidate's eligibility to force Cawthorn to testify under oath about his role in the Jan. 6 attack — since the burden is on him to prove that he is eligible.
In his lawsuit filed in federal court Monday, Cawthorn does not go into any details about that day or his actions leading up to it. He says his lawsuit is not intended to defend against those accusations but rather is seeking to stop the process before it even gets to that point.
"Rep. Cawthorn vigorously denies that he engaged in 'insurrection or rebellion' against the United States, but this litigation is not based in Rep. Cawthorn's factual defenses," the lawsuit says. "Instead, this matter is before the court based upon various constitutional and legal challenges to the North Carolina challenge statute itself and its application here."
The formal process to deal with the challenge against him was supposed to have started already, but it has been delayed while a related lawsuit, over the shape of North Carolina's political districts, plays out. That case is scheduled for oral arguments at the N.C. Supreme Court Wednesday.
In addition to the constitutional rights violations he alleges, Cawthorn also says the anti-Confederate piece of the 14th Amendment can't be used against him or anyone else still living.
He cites a law passed in 1872, the Amnesty Act, in which Congress decided to allow some former Confederate rebels to serve in Congress. He says it did keep a ban on former members of Congress who had served between 1859 and 1863 and later fought in the Confederacy, but it allowed all others who had participated in insurrection against the U.S. government to serve in Congress despite their actions. So he concluded that the ban shouldn't be able to apply to him or anyone else.
Cawthorn addressed the challenge in his interview with The Daily Caller. "It seems so asinine on the front of it," he said, "to think that something created for the Civil War is going to be used for what happened on Jan. 6, when I did my constitutional duty to certify an election."
Cawthorn voted against certifying the results of the election.
