A number of North Carolina voters filed a challenge to Rep. Madison Cawthorn’s candidacy before the State Board of Elections. Based on Cawthorn’s conduct on January 6, 2021, the challengers claim that Cawthorn has been disqualified from running to re-election under Section 3 of Section 14th Amendment. The House might have had the opportunity to elect Cawthorn if he is actually disqualified as per Section 3 Already He was expelled.
In section 3, you will find:
There is no way for anyone to be Senator, Representative, Member of Congress or an elector of the President or Vice-President, nor any other position. OfficeMilitary or civil Unterhalb der USAAnyone, in any State, who had previously taken an oath either as a member, or as an advisor, to the United States. United States officerAs a member or executive officer in any state legislature or as a judicial or executive officer, any person who supports the Constitution of the United States shall be guilty of insurrection, rebellion, or giving aid or comfort for the enemy thereof.
Seth Barrett Tillman, and I co-authored an article on Section 3. We focused on two words: “officer in the United States” (office. . . Under the United States Cawthorn’s challenge does not hinge on which meaning the phrase is.
Section 3’s jurisdictional component applies only to those who take an oath as a member or representative of Congress. Cawthorn signed an oath of office as Representative on January 3, 2021. Section 3’s disqualification provision applies only to “Senator/Representative in Congress”. Cawthorn currently serves as Representatives and has already announced that he will run for reelection. This means that if the issue were to ever be litigated the courts would not have any occasion to resolve the meanings “officer in the United States” or “office”. . . Under the United States”, Section 3.
The challenge presents many additional problems that Derek Muller explains at the Election Law Blog. Generally, states have the power to remove from the ballot candidates they do not wish to vote for. All states Office who don’t meet StateQualifications in law. Derek is unsure if states have the right to exclude these individuals from their ballots. congressional Candidates that do not meet the requirements federal Qualified candidates for office. Derek writes:
The “manner of” congressional elections is controlled by the states, but that power does NOT extend to the addition of qualifications or adjudicating the qualifications. In my argument, Arming the Ballot. The rules that govern the appearance on the ballot can be developed by a state, which may include threshold support levels, but they cannot cover substantive evaluations.
In the end, voters can choose to vote for any candidate. Congress, however, can determine whether this candidate is qualified. Derek writes that state election boards can’t deny citizens the right to vote in the Congress they choose, because it interprets federal law. Derek points out that Cawthorn and other House members have not been expelled. What if Congress didn’t decide to expel its own members? Would the courts be able to expel them as well?
I believe this lawsuit is nothing more than a warming up for Section 3 against Trump. It is possible that a court will find that Section 3 can be applied and declare that there has been an insurrection. These legal and factual facts will help Trump stay off the ballot. The issue will not go away. Marc Elias sent the marching orders already:
For 2022, my prediction is that we’ll have serious discussions about whether certain Republican House members are barred by Section 3 (14th Amendment) from being elected to Congress.
It is possible that we will even witness litigation. pic.twitter.com/pF7P2fw0kn
— Marc E. Elias (@marceelias) December 21, 2021
The Congressional Research Service recently published an update report on Section 3. It cited a blog post Seth wrote and mine. Keep watching for further developments.