A group of North Carolina voters took dramatic legal action against Rep. Madison Cawthorn’s (R-N.C.) reelection bid on Monday, arguing that the Constitution prohibits insurrectionist lawmakers from holding office.
YES, it does.
The Huffington Post reports, Voters Challenge Madison Cawthorn’s Reelection Bid On Constitutional Grounds:
The nonprofit Free Speech For People filed a challenge with the North Carolina State Board of Elections on behalf of 11 North Carolina voters, stating that Cawthorn has violated Section 3 of the 14th Amendment. Section 3 says that no person may hold political office “who, having previously taken an oath, as a member of Congress … shall have engaged in insurrection or rebellion.” The section was initially aimed at lawmakers who had plotted or battled against the U.S. government during the Civil War.
The challenge says Cawthorn urged his supporters to “threaten” and “intimidate” members of Congress from certifying the results of the 2020 presidential election. It also notes that Cawthorn and his staff were “in close contact” with organizers of the Jan. 6 rally that preceded the storming of the U.S. Capitol, and that Cawthorn himself spoke at that rally that day.
Efforts to halt the certification of the 2020 presidential election results “amounted to an insurrection,” the challenge adds.
YES, it does.
“Publicly available evidence, including Rep. Cawthorn’s statements and reports that he or his office coordinated with the Jan. 6 organizers, establish reasonable suspicion that Rep. Cawthorn aided [and abetted] the insurrection, thereby disqualifying him from federal office,” said Ron Fein, legal director of Free Speech For People.
Cawthorn did not deny the accusations in the suit, but complained he was being attacked by “left-wing activists.”
Pro Tip: There is another provision of federal law which will accomplish the same thing, and it applies not only to those who “aid and abet” an insurrection, but to those who provided “aid and comfort” to an insurrection, which the 147 Republican lawmakers who still objected to the election results even after the Capitol attack in furtherance of the “coup memos” prepared by Trump lawyers John Eastman and Jenna Ellis unquestionably did.
18 U.S. Code § 2383 – Rebellion or insurrection provides:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
The 147 Republican members of Congress include all four of Arizona’s Republican members of Congress, Andy Biggs, Paul Gosar, Debbie Lesko and David Scheiklert, who voted not to certify the election results of either Arizona or Pennsylvania. When they file to run for reelection, legal objections to their qualifications to run for office should be made under 18 U.S. § 2383, and Section 3 of the 14th Amendment. These seditious insurrectionists are unfit to serve in any federal elected office.
.@marceelias makes a key point: Because the disqualification provision of sec.3 of the 14th Amendment is mandatory even though not self-implementing, all officials allowing any oath-defying insurrectionist to run for office would themselves be violating the U.S. Constitution. https://t.co/Z9kt6kim4N
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) January 11, 2022
While these are federal laws, ballot access is a state issue. The Secretary of State’s office would make an initial determination of qualification for office. Lawsuits are certain to follow. The offending candidate should be enjoined by the courts from appearing on the ballot until the merits of the lawsuit are finally determined by the courts. This sounds like a plan to deal with our Arizona Sedtion Party insurrectionists. It’s worth a shot.
A handful of Democratic politicians and some constitutional law experts believe the 14th Amendment could also be used to stop Donald Trump from running for president again (excerpt):
In addition to legislative discussions, other efforts have focused on pressuring state elections officials with a view toward private litigation over the issue.
One pro-democracy group, Free Speech For People, has mounted a pressure campaign on top state elections officials to apply the 14th Amendment to Trump should he run again. Doing so would effectively bar Trump’s name from appearing on their state’s ballot in 2024.
This summer, the group sent letters to chief election officials for all 50 states and Washington, D.C., making the case that they have a constitutional duty to bar Trump from appearing on future state ballots. The group argues the provision doesn’t require additional steps by Congress because the 14th Amendment is already operative by itself.
“Just as states are permitted (if not required) to exclude from the presidential ballot a candidate who is not a natural born citizen, who is underage, or who has previously been elected twice as president, so too states should exclude from the ballot a candidate, such as Mr. Trump, who previously swore to support the Constitution, but then engaged in insurrection,” their letter to Georgia’s top election official argues.
And if the elections officials don’t comply?
“We intend to litigate this question,” John Bonifaz, the group’s president, told The Hill. “So if a secretary of state does not follow the mandate of Section 3, the 14th Amendment, we will bring this matter in court.”
Free Speech For People, or any other pubic interest organization that sues over these matters, should extend this argument to the 147 GQP Sedition Party members who provided aid and comfort to the seditious insurrection on January 6, 2021.
None of Arizona’s current four GQP Sedition Party members of Congress should be allowed to appear on the ballot in 2022.
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Jennifer Rubin writes, “Can insurrectionist enablers be disqualified from office? It’s complicated.”, https://www.washingtonpost.com/opinions/2022/01/12/can-insurrectionist-enablers-be-disqualified-office-its-complicated/
There are two hurdles to disqualification. Both raise unique questions for which there is little legal guidance.
First, defining “insurrection” is not straightforward. The relevant law in the U.S. Code does not help much. Section 2383 of Title 18 proclaims that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Second, Section 3 has no established mechanism for enforcement. Could Congress pass a resolution disqualifying some of its members? Could a political opponent of someone who assisted the Jan. 6 mob or who plotted to discard states’ electoral votes sue? We may find out soon.
[F]ree Speech for People will need to navigate around a host of issues, including questions about its standing to bring such a challenge. Whatever the North Carolina election board decides, the case will almost certainly wind up in state or federal court.
A ruling that the plot to overturn the election results meets the definition of “insurrection” would open the floodgates to suits against any members of Congress involved in the plot. Prime targets would include other speakers at the “Stop the Steal” rally and members who texted the White House chief of staff about the scheme to block President Biden from assuming office.
Brookings Institution’s Norman Eisen, who served as counsel to House impeachment managers during President Donald Trump’s first impeachment, welcomes the suit. “We need to explore all avenues of accountability against insurrectionists or those who gave them aid or comfort,” Eisen tells me.
Eisen adds that “the Jan. 6 Committee investigation, hearings and reports may have something to say about who if anyone in Congress — or the White House — falls within the parameters of this constitutional prohibition.” Based on the committee’s finding, Eisen argues, “Accountability is coming in various ways, and actions like [the Cawthorn claim] help bring it closer.”
Democratic election lawyer Marc Elias suggests in a piece for Democracy Docket other means to disqualify insurrection plotters: “Nonpartisan career lawyers [at the Justice Department] should evaluate not just the criminal liability of people involved in the insurrection, but constitutional disqualification under the lower civil standard of proof,” he writes. “However, if the Department fails or refuses to do so, Congress and private litigants will need to step in to vindicate this constitutional disqualification.”
After the Jan. 6 committee releases its findings, Congress may choose to take up disqualification. Members who played a role in the coup attempt should lawyer up. A host of litigants likely will head to court, threatening these Republicans’ midterm campaigns and raising a possible barrier to a 2024 presidential run for the insurrection’s chief instigator.