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‘Uncharted territory’: Jan. 6 lawsuit could cost GOP lawmaker his job, experts say

Rep. Madison Cawthorn, R-N.C., is trying to block a bid to disqualify him from holding office over his support of efforts to overturn the 2020 election results.
Rep. Madison Cawthorn, R-N.C., at the U.S. Capitol on Nov. 18, 2021.
Rep. Madison Cawthorn, R-N.C., at the U.S. Capitol on Nov. 18.Tom Williams / CQ-Roll Call, Inc via Getty Images file

Rep. Madison Cawthorn, who's embraced former President Donald Trump's false claims that the 2020 election was "stolen," is facing a legal challenge that experts say could bar him from holding office.

A complaint filed last month says the North Carolina Republican should be disqualified from seeking re-election to Congress over his support for the Jan. 6 riot.

"Challengers have reasonable suspicion that Representative 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," the complaint against Cawthorn to the state Board of Elections said, adding that the events of Jan. 6 "amounted to an insurrection."

Cawthorn is now trying to get the lawsuit dismissed, but election experts say that won’t be easy.

Michael Gerhardt, a political science professor at the University of North Carolina School of Law, said the residents who filed the lawsuit — voters in the district Cawthorn plans to run in this year, different from the one he currently represents — have a strong case.

"There’s a good amount of evidence from Cawthorn’s own mouth that he was supporting an insurrection," Gerhardt said.

The legal debate hinges on a little-used Reconstruction-era clause in the U.S. Constitution, as well as a North Carolina law that lets voters or other candidates challenge the eligibility of candidates if they have a “reasonable suspicion” they should be disqualified.

J. Michael Bitzer, a politics professor at Catawba College in North Carolina, said for now it's "unclear" how the fight will shake out.

"We've never had a situation like this before," he said. "We're in uncharted territory."

Under North Carolina law, the next step for the state election board would be to put together a panel to hear the dispute. Cawthorn would then have to prove he is not an insurrectionist and that he should not be disqualified.

The panel would release its findings, which could be appealed to the board, and the board would issue its own decision. That, in turn, could be appealed to the state Court of Appeals.

In his federal suit, Cawthorn "vigorously denies that he engaged in 'insurrection or rebellion' against the United States." He's seeking to have the challenge thrown out on the grounds that the challenge process is "unconstitutional" because it essentially places the burden on him to prove his innocence instead of the voters to prove his guilt.

Chris Cooper, a political science professor at Western Carolina University, said it will be difficult for Cawthorn to get a judge to see things his way since the law has been in place and used for years.

"It's been kicking around for a long time," Cooper said.

In court papers, the Board of Elections said it's heard 12 election challenges in the past four years. An NBC News review of the cases showed most dealt with residency issues. In two cases, candidates were disqualified.

Gerhardt said what makes Cawthorn's case different is its reliance on a clause in the Constitution's 14th Amendment, which was designed to stop former Confederates from holding office after the Civil War. It holds that "no person shall be a Senator or Representative in Congress" who, "having previously taken an oath as a member of Congress ... 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."

Cawthorn was sworn in on Jan. 3, 2021 — three days before a mob of pro-Trump supporters stormed the Capitol, halting the counting of electoral votes during a joint session of Congress.

A staunch Trump supporter, Cawthorn publicly promoted the former president's rally on the morning of Jan. 6 and spoke ahead of Trump, praising the crowd for having “some fight in it.”

He has since referred to Jan. 6 defendants as "political prisoners."

In a statement last month, Cawthorn said: "I love this country and have never engaged in, or would ever engage in, an insurrection against the United States. Regardless of this fact, the Disqualification clause and North Carolina’s Challenge Statute is being used as a weapon by liberal Democrats to attempt to defeat our democracy by having state bureaucrats, rather than the People, choose who will represent North Carolina in Congress."

The only time North Carolina disqualified a candidate for office based on the clause was in 1870, after a former Confederate colonel named Zebulon Baird Vance was elected to the U.S. Senate.

Vance reclaimed the Senate seat in 1878, after President Ulysses S. Grant signed the Amnesty Act of 1872. Cawthorn's filing contends the Amnesty Act should extend to him as well.

In a filing this week, the Board of Elections suggested Cawthorn's argument is flawed because the Constitution takes precedence over an 1872 statute, and it said it has the ability to hear the dispute.

"States have long enforced age and residency requirements, without question and with very few if any legal challenges. The State has the same authority to police which candidates should or should not be disqualified per Section 3 of the Fourteenth Amendment," the filing said.

The board also argued that Cawthorn's suit should be dismissed because the complaint against the 26-year-old congressman was put on pause pending the outcome of a court fight over redistricting in the state.

"We don't know what district he'll be running in" at this point, Bitzer said.

Cooper said Cawthorn will likely face a disqualification challenge in whichever district he winds up running in, but it's not certain he'll be prohibited from seeking re-election.

Gerhardt predicted it would ultimately be up to a judge to decide whether Cawthorn's words and actions met the civil definition of insurrection.

"The challenge that was brought against him is a credible claim," he said. "There has to be some sort of authority to settle that claim."