Banning ‘Insurrectionists’ Redux
Lawyers in North Carolina are trying to get a Congressman off the ballot.
NYT (“Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectionist’?“):
A group of lawyers is working to disqualify from the ballot a right-wing House Republican who cheered on the Jan. 6 rioters unless he can prove he is not an “insurrectionist,” disqualified by the Constitution from holding office, in a case with implications for other officeholders and potentially former President Donald J. Trump.
The novel challenge to the re-election bid of Representative Madison Cawthorn, one of the House’s brashest supporters of Mr. Trump and the lie that the 2020 election was stolen, could set a precedent to challenge other Republicans who swore to uphold the Constitution, then encouraged the attack.
While the House committee investigating the assault on the Capitol has so far been unsuccessful in its effort to force key members of Congress to cooperate with the inquiry, the North Carolina case has already prompted a legal discussion — one that is likely to land in court — about what constitutes an insurrection, and who is an insurrectionist.
While I’m skeptical that Cawthorn, or anyone who hasn’t been convicted of a felony related to sedition or treason, can be punished as an “insurrectionist,” I’m happy to have him serve as a guinea pig to test that in court.
“I don’t think we can have those persons who have engaged in acts of insurrection elected to office and serving in office in violation of their constitutional duties and oath,” said John R. Wallace, one of the lawyers on the case and a campaign finance and election law expert in Raleigh, N.C. He added, “It should not be difficult to prove you are not an insurrectionist. It only seems to be difficult for Madison Cawthorn.”
I did not attend law school but, as I understand it, it should be up to accusers to prove Cawthorn is an insurrectionist, not vice-versa. I believe I’ve read that somewhere.
. . . North Carolina’s election statute offers challengers a remarkably low bar to question a candidate’s constitutional qualifications for office. Once someone establishes a “reasonable suspicion or belief” that a candidate is not qualified, the burden shifts to the officeseeker to prove otherwise.
If Mr. Cawthorn is labeled an “insurrectionist,” that could have broader ramifications. Other Republican House members, such as Marjorie Taylor Greene of Georgia, Mo Brooks of Alabama, Paul Gosar of Arizona, and Lauren Boebert of Colorado, face similar accusations, but their state’s election laws present higher hurdles for challenges to their candidate qualifications. If one of their colleagues is disqualified for his role in encouraging the rioters, those hurdles might become easier to clear.
I would be happy, indeed, if none of those individuals ever again held positions of public trust in the United States. But, again, I’m skeptical of using lawsuits to challenge the right of people who have not been convicted of crimes to present themselves to the voters.
The lawyers challenging Mr. Cawthorn’s eligibility are using an amendment last invoked in 1920, when Representative Victor L. Berger, an Austrian-American socialist, was denied his seat representing Wisconsin after criticizing American involvement in World War I.
And that’s why I’m so skeptical: a United States citizen who otherwise meets the Constituitonal qualifications for office should not be barred from running because he holds unpopular views. If those unpopular views mean that the voters reject their candidacy, so be it. But we have a right to criticize our government, hold extreme and unpopular views, or even be complete jackasses. If that appeals to local constituencies, that’s not great for the Republic. But that’s democracy.
If nothing else, the lawyers, including two former justices of the North Carolina Supreme Court, want to depose Mr. Cawthorn as part of discovery to question his actions before, during and after the attack on the Capitol.
Which is another reason judges should dismiss the case. Citizens, even those running for public office, should not be required to spend inordinate time and money fighting off frivolous suits that are fishing expeditions in disguise. There is no reason these lawyers should have a right to depose Cawthorne. If he’s charged with a crime, then DOJ’s lawyers can do that.
There is much that is known. Whether it makes Mr. Cawthorn an “insurrectionist” would have to be determined by North Carolina’s Board of Elections, or more likely, by the state’s courts, where the board might punt the matter.
Weeks after the 2020 election, Mr. Cawthorn told a conservative gathering to “call your congressman” to protest the results, adding, “you can lightly threaten them.” He promoted the “Save America” rally behind the White House on Jan. 6, writing on Twitter, “the future of this Republic hinges on the actions of a solitary few,” then adding “It’s time to fight.” At the rally, he riled the crowd from the stage with talk of election “fraud.”
He later called those jailed for storming the Capitol “political hostages” and “political prisoners” that he would like to “bust” out of prison.
“The Second Amendment was not written so that we can go hunting or shoot sporting clays. The Second Amendment was written so that we can fight against tyranny,” he would later say in Franklin, N.C. He added, “If our election systems continue to be rigged, and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed.”
All of this makes Cawthorn a jackass unfit for office. None of it makes him an insurrectionist. It’s just silly.