NYT:
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.
And for the first time, a lawmaker who embraced the rioters may have to answer for his actions in a court of law.
Cases challenging the legitimacy of a candidate before election boards usually hinge on a candidate’s age, legal residency, place of birth or citizenship status, or the legitimacy of signatures in a candidacy petition.
This case revolves around the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy who were streaming back to Washington to reclaim their elective offices — and infuriating unionist Republicans.
That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Mr. Cawthorn, 26, who is in his first term in Congress, has denounced the case as an egregious misreading of the 14th Amendment, but he has retained James Bopp Jr., one of the most prominent conservative campaign lawyers in the country, as counsel.
Mr. Bopp, in an interview, declared the matter “the most frivolous case I’ve ever seen,” but allowed that what he called an “unethical” exploitation of North Carolina law by “competent” lawyers could pose a real threat to Mr. Cawthorn — and by extension, to others labeled “insurrectionists” by liberal lawyers….
Gerard N. Magliocca, an expert witness for the complainants and a law professor at Indiana University who has written on the constitutional section in question, said Mr. Bopp was wrong.
Congress did not discuss what would happen in the future when it debated granting amnesty to confederates in 1872, nor did it have the power to grant prospective pardons, he said. Mr. Berger, the sole office holder denied re-election after Reconstruction because of the amendment, tried to make the same argument, but Congress rejected it.
Besides, Mr. Magliocca said, the section at issue remains in the Constitution; Congress does not have the power to repeal it.
Mr. Bopp also said the Constitution clearly granted each chamber of Congress — not a board of elections — the power to determine eligibility for office, an assertion that Ron Fein, the legal director of Free Speech for People, a nonpartisan interest group that is participating in the challenge, dismissed.
“If he’s right, than a nine-year-old could show up with enough signatures and qualify for the ballot, because only Congress could disqualify him after the election,” Mr. Fein said.
Michael J. Gerhardt, a constitutional law professor at the University of North Carolina, said such disputes were weighty ones for a board of elections, and he predicted that Mr. Cawthorn would seek to force the courts to decide whether he is or is not an insurrectionist. He did not agree that the case was frivolous.
“There’s an old saying in law school, ‘Does it pass the straight-face test?’” he said. “And I think they pass the straight-face test.”