Should certain politicians be subject to disqualification under the Constitution's ban on 'insurrectionists'?

Some critics say GOP Rep. Madison Cawthorn's Jan. 6 actions disqualify him.

February 15, 2022, 12:25 PM

A group of voters in North Carolina is challenging Republican Rep. Madison Cawthorn's eligibility to run for reelection, arguing his actions on Jan. 6 and support for overturning the election disqualifies him under a constitutional clause barring any federal official who has "engaged in insurrection" from holding office.

"I think there's certainly enough evidence on the public record as it now stands for a finding that he engaged in, assisted, aided and abetted the insurrection on and surrounding Jan. 6," said Robert Orr, a former North Carolina Supreme Court justice and one of the lawyers representing the voters challenging Cawthorn, a conservative firebrand and diehard Donald Trump supporter.

Enacted after the Civil War, the Disqualification Clause in the 14th Amendment bars any person from holding federal office who has previously taken an oath to protect the Constitution -- including a member of Congress -- who has "engaged in insurrection" against the United States or "given aid or comfort" to its "enemies."

Rep. Madison Cawthorn leaves a meeting of the House Republican Conference in Washington, Dec. 1, 2021.
CQ-Roll Call via Getty Images, FILE

"The language of this particular disqualifier isn't limited in any way to just those who served in the Confederacy, but to anybody who going forward has participated in or supported an insurrection or rebellion against the country, and who had taken an oath of office," Orr said.

The alleged evidence cited by the challengers includes how Cawthorn voted to reject the electoral results in different battleground states, speaking at the Trump rally that proceeded the attack on the Capitol, tweeting out that he was "fighting a battle for our Constitution on the House floor" and that "the battle is on the House floor, not in the streets of D.C," and more.

Laurence Tribe, a constitutional law professor emeritus at Harvard University, contends that, even if it's determined Cawthorn didn't "engage" in an insurrection, if the public focuses "on the words giving aid and comfort to an insurrection -- words in the 14th Amendment -- the evidence seems more than sufficient."

Cawthorn recently asked a federal court for an injunction -- to keep him from having to testify about his actions on Jan. 6 in front of a five-person panel appointed by the North Carolina State Board of Elections.

He told ABC News he takes the effort to have him disqualified very "seriously" and said it can have "major implications down the road."

In his legal filing, Cawthorn said "running for political office is quintessential First Amendment activity and afforded great protection," that the North Carolina challenge statute is unconstitutional, that the disqualification provision citied applied only soon after the Civil War and that Congress has the ultimate power to decide his eligibility for office.

He has said in a statement the statute is "being used as a weapon by liberal Democrats to attempt to defeat our democracy by having state bureaucrats, rather than the People, choose who will represent North Carolina in Congress. I'm defending not only my rights, but the right of the People to democratically elect their representatives."

In a response filing, the North Carolina State Board of Elections argued it should be allowed to look into the challenges to protect the integrity of state elections.

Other elected officials believed to have been involved in or who encouraged the events that played out on Jan. 6 could face similar challenges.

"The provisions of Section Three in the 14th Amendment are very expansive in scope, and it would certainly encompass anybody," he said. If former President Donald Trump tried to run for office again "and wanted to be on the ballot in North Carolina, he would arguably face that exact same challenge," Orr said.

Former President Donald Trump points as he holds a rally in Florence, Arizona, Jan. 15, 2022.
Carlos Barria/Reuters, FILE

"Under the Supremacy Clause of Article Six, every state has the obligation to enforce federal law and part of federal law is the Constitution, and part of the Constitution is Section Three of the 14th Amendment, which is relevant to someone's eligibility to run for office as anything else," Tribe said.

Ron Fein, a lawyer also representing the voters hoping to get Cawthorn disqualified -- and Legal Director of Free Speech For the People, a self-described pro-democracy organization -- says his group plans to bring similar challenges against other elected officials.

"We at Free Speech For People are looking at other congressional candidates, state candidates and, of course, Donald Trump if he decides to run for office, again, because the reach of the 14th Amendment's insurrectionist Disqualification Clause could potentially include quite a few of them."

Fein said Cawthorn "won't be the last" but did not get more specific.

Asked about the party affiliation of those he's representing, Fein said it was a nonpartisan effort and the voters hadn't been asked to reveal that.

The procedural framework for such challenges differs by state. In North Carolina, for example, a challenge is filed with the state board of elections, while in other states, it is filed with a state secretary or directly in court.

But Fein said one constant is that "the 14th Amendment and the insurrectionist Disqualification Clause apply everywhere."

ABC News' Benjamin Siegel contributed to this report.

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