Lawfare: “In any case, even if the petition against Cawthorn vaults that hurdle, its prospects for disqualifying him are dim. While the events of Jan. 6 probably qualify as an “insurrection,” discovery would have to turn up something far more damning than the petitioners have alleged so far to establish that Cawthorn “engaged in” it.
At the same time, this petition may be more about discovery than disqualification. The depositions and subpoenas authorized by North Carolina’s unusual election-challenge rules offer the prospect of a major breakthrough to those digging into the causes of the insurrection. The petitioners in this case could possibly force Cawthorn to become the first member of Congress to testify about the siege.
The full text of Section 3 reads:
No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
On Jan. 3, 2021—three days before the Capitol riot—Madison Cawthorn was sworn in as the representative of North Carolina’s 11th Congressional District. Accordingly, he took a triggering “oath” that at least brought him within Section 3’s ambit.
Last December, Cawthorn filed to run again in the 2022 midterms. Since the state had recently redrawn its district lines, he filed to run in the 13th Congressional District this time.
On Jan. 10, a group of 13 registered voters from that district filed a petition with the North Carolina State Board of Elections challenging Cawthorn’s constitutional eligibility to hold office, citing Section 3.
The petitioners’ lead counsel is Ronald Fein, the legal director of the nonprofit Free Speech for People. Among other lawyers working on the petition are two former North Carolina Supreme Court justices: Robert F. Orr, a Republican, and former Chief Justice James Exum Jr., a Democrat. Acting as a pro bono consultant on the case is 14th Amendment scholar Gerard Magliocca of the Indiana University School of Law. (With extraordinary timing, on Dec. 29, 2020—eight days before the riot—Magliocca had posted online for comment his draft law review article, “Amnesty and Section Three of the Fourteenth Amendment.”It has since been published with minimal changes. Disclosure: Magliocca also wrote on this topic for Lawfare shortly after the Capitol siege.)
In an interview, Fein explains that his group and another nonprofit, Our Revolution, have teamed up to launch a project called 14Point3. It aims to enforce Section 3 against those it believes have disqualified themselves from office as a function of their alleged roles in triggering the Jan. 6 insurrection.”