Wilmington, N.C. — A federal judge Friday blocked an effort to keep U.S. Rep. Madison Cawthorn off North Carolina ballot this year, saying the state’s election board can’t proceed with an inquiry that would have delved his role leading up to the Jan. 6, 2021, attack on the U.S. Capitol.
Chief District Court Judge Richard Myers said he couldn’t allow the challenge, filed by attorneys looking to label the first-term Republican as an insurrectionist who should be legally barred from the ballot, to move forward. The courts, Myers said, must protect the soapbox, the ballot box and the jury box.
“When those fail, that’s when people proceed to the ammunition box,” said Myers, who was appointed by former President Donald Trump.
The next step remains unclear. The North Carolina State Board of Elections could appeal Myers’ decision, but the legal team representing the board declined to say whether the board will do so. An elections board spokesman said the board was reviewing the court’s decision, which came down a bit before 12:30 p.m.
John Wallace, a lawyer for voters who had challenged Cawthorn’s candidacy at the state level, said his group could try to intervene in the federal court proceeding, but that could prove difficult. Those challengers had hoped the elections board would convene an inquiry panel next week under the North Carolina laws that allow voters to challenge a candidate’s qualifications. That panel could have subpoenaed and deposed Cawthorn, as well as others, and Cawthorn sued in federal court to stop the process.
The challengers alleged that, by stoking protestors’ anger at a Jan. 6, 2021, rally in Washington, D.C., Cawthorn triggered Section 3 of the 14th Amendment of the U.S. Constitution, which was written after the Civil War to keep Confederates out of key government jobs, including the U.S. Congress. Cawthorn has denied he engaged in any insurrection. His attorney, Jim Bopp, said Friday that it’s insulting to equate Cawthorn’s rally speech and other comments with taking up arms against the country.
But beyond that, Bopp argued that a law Congress passed in 1872 removed rules against insurrectionists running for Congress. Myers backed that argument Friday, ruling from the bench after about 90 minutes of oral arguments that the 1872 law didn’t just absolve Confederates, it also allows future insurrectionists to run for office.
Terence Steed, who represented the state elections board Friday on behalf of the state attorney general’s office, had called that argument “absurd.” He gave an example, telling Myers that, if the judge cleared his courtroom of rowdy audience members, then let them back in, no one would take that to mean future audiences had license to disrupt court proceedings.
But in his ruling, Myers backed Bopp’s interpretation—that the plain language of the 1872 law reads as prospective as well as retrospective. If that wasn’t Congress’s intent, Myers said, Congress could have voted to fix it any time over the past 150 years.
Myers also noted the tight timetable at this point in the election cycle. Candidate filing in congressional and other races closed Friday at noon, and state election officials have a number of deadlines to hit in the coming weeks to prepare for the May 17 primaries.
If a state elections board inquiry ultimately kept Cawthorn off the ballot, the primary elections would likely be decided before his appeals on that decision could run their full course, which could have gone as high as the U.S. Supreme Court.
That inquiry was expected to begin next week. And under North Carolina’s candidate challenge rules, Cawthorn would have had the burden of proving he didn’t engage in insurrection.
The process was closely watched and seen as a potential avenue for similar challenges against members of Congress in other states who backed Trump’s false allegations that the 2020 presidential election was stolen from him.
“Greatly disappointed,” said Wallace, who monitored the hearing Friday for the challengers and has also represented the state Democratic Party. “We will need to consider whether a next step is warranted.”