The North Carolina elections board declared this week that it has the power to bar Rep. Madison Cawthorn (R-N.C.) from running for office due his actions related to the Jan. 6, 2021, Capitol riot. It insists that it can enforce Section 3 of the Fourteenth Amendment and declared that he is an insurrectionist. It is a position that, in my view, is wholly outside of the language and intent of this provision. Cawthorn is right to challenge any such action as unconstitutional.
In a filing to dismiss a lawsuit by Cawthorn, the board wrote
“The State does not judge the qualifications of the elected members of the U.S. House of Representative. It polices candidate qualifications prior to the elections. n doing so, as indicated above, States have long enforced age and residency requirements, without question and with very few if any legal challenges. The State has the same authority to police which candidates should or should not be disqualified per Section 3 of the Fourteenth Amendment.”
The asserted authority would invite partisan and abusive practices by such boards. It is also wrong on the purpose of this constitutional provision. Moreover, there is a vast difference between enforcing an objective standard on the age of a candidate and enforcing the subjective standard whether that candidate’s views make him an “insurrectionist.”
As I have previously written, (here and here and here), Democrats are playing a dangerous game with the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause.” The provision was written after the 39th Congress convened in December 1865 and many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.
Ironically, it was Justice Edwin Reade of the North Carolina Supreme Court who later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.” So, members drafted a provision that declared that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
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