[This article was updated Feb. 1 to include a legal response from Rep. Cawthorn’s campaign.]
To former Army Gen. Joseph C. Abbott, a candidate seeking to represent North Carolina in the U.S. Capitol, his opponent was both unworthy to hold the office and disqualified by law. Never mind, Abbott said, that his opponent from western North Carolina had voter support and powerful political backing; the man had aided “an insurrection” and violated a sacred oath to “support the Constitution.”
The election that concerned Abbott was in 1870. His opponent was an unrepentant former Confederate colonel, an Asheville native whose name and legacy looms large in local and North Carolina history:
Zebulon Baird Vance.
Those charges from a century and a half ago are echoed in a pending challenge by 11 North Carolina Republican voters alleging that Rep. Madison Cawthorn supported an “insurrection” on Jan. 6, 2021, by a violent mob of Trump supporters seeking to prevent certification of Joe Biden as president.
The challengers contend that under the Constitution and North Carolina election law, Cawthorn cannot qualify as a candidate for re-election.
The campaign-killing penalty is prescribed in an obscure section of the Constitution’s 14th Amendment, adopted in 1868, three years after the end of the Civil War. It reads in part: “No person shall be a Senator or Representative in Congress” who “shall have engaged in insurrection or rebellion” after previously pledging to “support the Constitution.”
Less than halfway into his first term, the 26-year-old Cawthorn, a Republican, announced he would leave the western North Carolina District that sent him to Congress, to seek re-election in a newly created District 13 that includes the Charlotte suburbs.
The legal challenge to his candidacy will not affect the 2022 House election to pick his replacement in the renamed District 14 that includes Buncombe, Henderson, Madison, Haywood, Yancey, and Transylvania Counties.
But if successful, it may signal the opening round of a national battle to call to account others who aided the attack on the Capitol Building — including former President Donald Trump.
Carpetbaggers and Racists
At the time of that 1870 election, Vance was among North Carolina’s most influential public figures, at the zenith of a career that brought him from a Reems Creek valley farm, through Buncombe County politics, and into a term as the congressman from western North Carolina, where he opposed secession. But when the Civil War erupted, Vance organized and led a Confederate regiment, which spring-boarded him into the governor’s office, a post he held through the remainder of the rebellion.
With the Confederacy’s defeat, political power was taken up by newly arriving northerners — former Union Army Gen. Abbott among these so-called carpetbaggers — and Blacks, most of them formerly enslaved.
Abbott, a native of New Hampshire with backgrounds in newspapering and the law, had settled in Wilmington and took advantage of this post-war opportunity to win election to the U.S. Senate in 1868, when North Carolina was readmitted to the Union. When he sought re-election in 1870, events had shifted quickly and decisively against Reconstructionists.
According to an official U.S. Senate history of that election: “By 1870, white supremacy groups had so far suppressed black suffrage that the state legislature easily chose Zebulon B. Vance (Democrat), who had been the state’s governor during the Civil War, over Abbot for the Senate term beginning in March, 1871.”
But Abbott successfully struck back, wielding a newly adopted legal weapon: Section 3 of the 14th Amendment. The official Senate history stated that “Vance was still hampered by political disabilities imposed under the 14th Amendment … because of his support for the Confederacy.” It added that the amendment, adopted in 1868, “prohibited service in Congress by anyone who had been a member of Congress and then engaged in rebellion against the United States.”
That language directly links Vance’s disqualification to the current challenge enmeshing Cawthorn. He, like Vance, swore the oath to support the Constitution – in Cawthorn’s case just three days before the Jan. 6, 2021, attack.
Vance’s disqualification marked a stunning reversal of fortune, though it, too, was relatively short-lived. In 1872, President Ulysses S. Grant signed the General Amnesty Act enabling all but a few former Confederates to serve again in state and federal offices. And in 1878 the legislature again elected Vance to the Senate, where he served until his death in 1894 while cultivating a reputation as a white supremacist and leading opponent of Black civil rights.
He barnstormed the South giving speeches that often contained the line: “No race in the world has been able to stand before the pure Caucasian.” He falsely described Blacks as “the descendants of barbarian tribes who for 4,000 years have contributed nothing to civilization.”
Such language appeared to enhance Vance’s popularity within the state and positioned him as Asheville’s most famous politician. His statues have stood in the U.S. Capitol’s Statuary Hall and on the grounds of the North Carolina state house in Raleigh. His name adorns a building on the University of North Carolina-Chapel Hill campus, is carried on many public schools across the state and is given to a county in the Carolina Piedmont bordering Virginia.
Many Asheville residents and visitors know the Vance name because it was carved into the granite pedestal of a 75-foot-tall obelisk that, from 1898 until the summer of 2021, was the centerpiece of Asheville’s Pack Square.
Then came Vance’s ignominious fall and the unraveling of his reputation. By order of the city council and Buncombe County commission, the obelisk was dismantled and its pedestal shrouded as if to cover the embarrassment of having honored a man who prided himself on being a white supremacist.
Vance’s racist views played little or no part in the 1870 campaign when Abbott thwarted Vance’s hopes of taking a seat as one of North Carolina’s senators. Instead, he was barred from re-election for reneging the oath he swore to the Constitution.
And it is this “disqualification clause” that is threatening to kill Cawthorn’s 2022 candidacy.
“Legitimate” or “Frivolous”?
Former North Carolina Supreme Court Justice Robert F. Orr, who is advising the group bringing the disqualification challenge, told Asheville Watchdog that there are three issues to be decided by the Board of Elections: “Did [Cawthorn] take the oath [to support the Constitution]? … Was there participation in the insurrection? Did he ‘aid and comfort and engage’ in this effort?”
The answer to all, Orr said, is yes. “I definitely think it is a legitimate and appropriate challenge.”
Cawthorn struck back in federal court Feb. 1 in an attempt to derail the entire state process. In his lawsuit, filed in the Eastern District of North Carolina, the congressman “vigorously denies” participating in “insurrection or rebellion” and contends that the state’s election law contains several “unconstitutional provisions” invalidating any action taken under it.
In a press release issued by Cawthorn’s campaign, his lead attorney, James Bopp Jr., said that the election law’s candidate-qualification process violated both Cawthorn’s First Amendment right to free speech, and his 14th Amendment right to due process. The latter is a reference to the election law’s prescribed process for resolving challenges to a candidate’s qualifications.
Bopp also argued that the General Amnesty Act signed by President Ulysses S. Grant in 1872 effectively repealed the 14th Amendment’s disqualification clause — a position contrary to long-established legal precedent. And he argued that only Congress has the authority to determine who is fit to serve.
But nonpartisan experts in North Carolina’s election law disagree for many reasons, among them that the 1872 amnesty specifically written to rehabilitate Confederates cannot nullify a Constitutional Amendment. These experts say that if Cawthorn treats the complaint lightly, he may find himself in political jeopardy because of legal, historical, and partisan-political factors aligned against him.
First, under North Carolina law, a challenge to a candidate can be brought to the Board of Elections by any voter who has a “reasonable suspicion” of a disqualifying factor, an unusually low bar for such a serious complaint. If the Board — where Democrats hold a 3-2 advantage — rules that the disqualification complaint is viable, a fact-finding process begins where evidence is gathered and testimony is taken. If Cawthorn submits to questioning, it will be under threat of perjury.
Notably, the law places the burden on Cawthorn — not on the Elections Board — to prove that he meets all the criteria to serve in office. Typically, those requirements are for easily met standards such as a candidate’s age, citizenship, and place of residency.
If the Board of Elections hears the case — which won’t be until after the Supreme Court decides the statewide redistricting lawsuit on Feb. 23 — Cawthorn would be the first candidate since 1870 to have to prove that he didn’t engage in “insurrection or rebellion” in violation to a prior oath to support the Constitution.
“I think the focus needs to be on the fact that this isn’t an unusual process,” former Justice Orr said. “It’s just that the disqualifier [the 14th Amendment] is rare, and that’s fortunate because you don’t want insurrections to be a regular occurrence.”
Legal Precedent in N.C. Court
Although Vance’s disqualification in 1870 may be the best known, its reliance on the 14th Amendment was preceded a year before by a second case with even more relevance to Cawthorn’s case. It involved the long-time sheriff of Moore County, a man named Kenneth Worthy, who had been elected prior to the Civil War and as is required of all sheriffs, swore the oath to support the state and federal Constitutions.
Worthy continued as sheriff during the Confederacy, switching his allegiance. But after the war, when he sought re-election, a Reconstructionist county government ruled that Worthy was disqualified by the newly adopted Amendment for having violated his oath. The North Carolina Supreme Court agreed in a unanimous decision handed down on Jan. 1, 1869.
“I would say this establishes legal precedent in the North Carolina courts, and that ruling was on a set of facts far less egregious than in the Cawthorn case,” Orr said.
The former justice said it makes sense to place the burden to prove qualification on the candidate. “They are simply asked, ‘If you want to be a candidate in this election for this office, you merely have to prove that you are qualified. It shouldn’t be hard for somebody to prove that he wasn’t involved in an insurrection against the country,” Orr said.
The key word here, though, is “insurrection.” The outcome of the challenge — and thus Cawthorn’s political future — will likely turn on whether the events culminating on January 6th can legally be defined as insurrection. Several conservative Republican lawmakers, backed by sympathetic lawyers and commentators, scoff at characterizations of the Jan. 6 attack as an insurrection. So far no high-level court has defined the attack using that word.
But legal advisers to the Cawthorn challenge contend that there is strong backing for its use. Indiana University law professor Gerard Magliocca, widely regarded among practitioners of election law as a leading expert on the 14th Amendment’s disqualification clause, said in an interview with Asheville Watchdog that “insurrection” has been used in two significant measures receiving congressional approval.
“It’s in the Articles of Impeachment [against Trump], which were supported by a majority of the Senate,” Magliocca said, though the number fell short of the 60 votes needed for conviction.
The word was also included in a joint resolution overwhelmingly approved by the House and the Senate awarding the Congressional Gold Medal to the police officers who protected lawmakers from “the mob of insurrectionists.” Cawthorn voted in favor of that award.
Magliocca said that of particular importance in the Cawthorn proceeding is that North Carolina law will require the congressman to prove that his actions fell short of even providing “aid and comfort” to the attackers — a much lower standard than “insurrection” or “rebellion.” Again, that precedent was set in the Worthy case, in which the state Supreme Court disqualified the sheriff for simply rendering “personal service” to the Confederacy. In Orr’s words, “he was just being a sheriff.”
“It’s Time to Fight”
In the 34-page complaint pending before the Elections Board, Cawthorn’s challengers allege that his own words and actions show his support for the attack, though he disavowed it afterward and has insisted he discouraged violence. The complaint notes that Cawthorn was a featured speaker at the pro-Trump rally preceding the attack, and it cites a media report alleging Cawthorn was involved in its planning.
Cawthorn also tweeted in advance of his appearance as if to summon action from the protesters: “[T]he future of this Republic hinges on the actions of a solitary few… It’s time to fight.”
Hours after the pro-Trump rioters were driven out of the Capitol Building — leaving five people dead and hundreds injured, and ending 232 years of peaceful transfer of American power — Cawthorn was among 139 House Republicans who voted to stop the electoral count for Biden from being certified, which was the goal of the rioters.
The complaint further cites Cawthorn’s subsequent description of jailed rioters as being “political hostages” and “political prisoners,” further showing sympathy for their effort.
When taken together, Orr told The Watchdog, the legal standard for “insurrection” had been met, adding: “I think this is a legitimate and appropriate challenge to [Cawthorn’s] election … The public record is pretty clear-cut.”
The challenge is being brought by 11 Republican voters residing in what will be North Carolina’s 13th Congressional District, where Cawthorn has filed for election. It is backed by two liberal-leaning political organizations: Free Speech for People and Our Revolution. Their aim, said spokesman Paco Fabian in an interview for this article, is to use Section 3 of the 14th Amendment to hold to account those elected officials who supported or encouraged the Jan. 6 attack.
The list of those being targeted includes many House members and — if he seeks election in 2024 — former President Trump. Fabian said the group will file 14th Amendment challenges against Trump with elections offices in every primary and caucus state to keep him off those ballots, which might cripple his effort to win the GOP nomination.
This strategy’s success hinges heavily on the outcome of the challenge against Cawthorn, which Fabian said heads the target list for two reasons: First, Cawthorn has already filed for election (though in a newly drawn district), and second, because North Carolina’s election disqualification standards may work against the congressman.
“We hope to do the same with many other folks, not just in Congress, but also in state and local offices,” he continued. “As it becomes clear which folks will run for re-election or seek office, they’ll be challenged as well.”
What Happens Next?
The challenge against Cawthorn was filed with the Board of Elections Jan. 10 and was to have been heard on Jan. 12. But the North Carolina Supreme Court ordered a delay in the process until it renders its decision on the redistricting lawsuit, reasoning that if District 13 lines are redrawn, these voters may lack legal standing and new challengers must be found.
The redistricting suit is to be decided by Feb. 23 and candidate filing will close on March 4. Once the complaint is refiled, the Board of Elections must take it up within two days. Under this timetable, it must return its recommendation within 20 days.
If Cawthorn is tossed from the ballot, there will be appeals up to the North Carolina Supreme Court, where Democrats hold a 4-to-3 edge.
The primary election remains May 17, as Gov. Roy Cooper, a Democrat, vetoed the GOP legislature’s attempt to push it back into June.
If the “disqualification” challenge against Cawthorn succeeds, it may stand as one of history’s great ironies linking Cawthorn and Vance across the decades. Coincidentally, each represented western North Carolina, their birthplaces, in the Congress as young men (when sworn in, Cawthorn was 25 and Vance 28). And now, each will have faced disqualification based on an obscure legal clause that has been invoked only once since Reconstruction, in 1919.
Yet former Justice Orr told The Watchdog that neither the rarity of allegation nor the passage of 152 years renders the challenge irrelevant.
“Maybe the lesson we will take from this,” Orr concluded, “is that we’ve been extremely fortunate in this country not to have seen something like this since the Civil War.”
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and surrounding communities. Tom Fiedler is a Pulitzer Prize-winning political reporter and former executive editor of The Miami Herald. He can be reached at firstname.lastname@example.org.