Who can cast Madison Cawthorn?

GOP Rep. Madison Cawthorn waits ahead of a visit by former U.S. President Donald Trump and Texas Governor Greg Abbott in Pharr, Texas on June 30, 2021.


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callaghan o’hare/Reuters

The US Constitution does not allow states to invent qualifications for sitting in Congress and exclude candidates from the ballot if they do not meet them. Yet that is precisely what the North Carolina State Board of Elections is trying to do to Rep. Madison Cawthorn.

Mr. Cawthorn, who was elected in 2020, attended President Trump’s rally in Washington on January 6, 2021. Mr. Cawthorn delivered scathing rhetoric before and during the rally, falsely casting doubt on the election outcome and using the word “combat” when addressing the public. Senate Minority Leader Mitch McConnell called the ensuing riot on Capitol Hill a “failed insurrection.”

Mr Cawthorn’s opponents argue he is ineligible to serve in Congress, despite his current service there. They point to Section 3 of the 14th Amendment, a provision enacted after the Civil War, which states that no one may be a member of Congress if he has sworn an oath to uphold the Constitution and later “engaged in an insurrection or a rebellion” against the United States.

But who decides whether Mr. Cawthorn is eligible? In North Carolina, the five-member state election commission is empowered to hear contestations of candidate eligibility. The commission can hold a hearing, collect evidence and render a judgment. If it concludes that a candidate is ineligible, the board may exclude him from the ballot. Excluded candidates may appeal this decision to the courts.

A group of North Carolina voters challenged Mr. Cawthorn’s eligibility. That process is on hold while state courts hear the redistricting cases, but Mr. Cawthorn has filed a federal lawsuit arguing that the council does not have the power to review his qualifications.

It would be unconstitutional if the board attempted to remove Mr Cawthorn from the ballot. In 1995, the Supreme Court ruled in US Term Limits Inc. v. Thornton that an amendment to term limits in Arkansas could not apply to congressional candidates. The qualifications listed in the Constitution, the court explained, are “fixed and exclusive”. When a state tries to enforce an existing constitutional qualification, it may believe it is doing the right thing, but when it does so months before Election Day, it often adds a qualification that the Constitution prohibits.

In 2014, opponents of Senator Mary Landrieu’s candidacy tried to prevent her from voting in Louisiana. They argued that she had moved to Washington and was no longer a resident of Louisiana and constitutionally ineligible. A state court rightly dismissed the challenge, saying she didn’t need to prove where she lived before the election.

Even if Mr. Cawthorn were an “insurgent” – a matter of legal and factual debate – that would not be a permanent impediment to the performance of his duties. The Constitution states that “Congress may, by a vote of two-thirds of each House, remove such disqualification.” We don’t know if Congress will decide before Election Day to expel from the House all those involved in the events of the Jan. 6 riot, but the Constitution is clear: the decision is not for the House. North Carolina.

States cannot review a candidate’s qualifications because the Constitution reserves that power to Congress itself. If voters elect a rogue who is constitutionally ineligible to serve, the people’s representatives must decide whether or not to kick him out of the House.

Mr. Muller is a professor of law at the University of Iowa.

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Appeared in the February 14, 2022 print edition.


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