James Bopp Jr. pushed this maximalist view at a hearing of the 4th US Circuit Court of Appeals, which is reviewing a lower-court order that shut down a candidacy challenge filed by several of Cawthorn’s constituents in North Carolina. Their challenge tried to block Cawthorn from running for re-election because of the Civil War-era “disqualification clause” in the 14th Amendment.
Overall, the three-judge appeals panel appeared to agree with the challengers that there were some issues with the lower court ruling that might need to be corrected. The appeals court in Richmond, Virginia, didn’t say when it will issue a decision. The GOP primary in North Carolina is May 17, and the challengers have said they’ll continue their fight through the general election.
Left-leaning groups have tried to use the provision to target Republicans who they say aided the January 6 insurrection. None of their challenges have succeeded so far, though they did force Rep. Marjorie Taylor Greene of Georgia to testify under oath for three hours about January 6.
The crux of Bopp’s argument Tuesday was that only Congress can judge the qualifications of its members, based on Article I of the Constitution. This would force state election officials to sit on the sidelines while blatantly ineligible candidates run for, and even win, seats in Congress.
The proper time for adjudication, Bopp said, is after the election but before members are sworn in.
“Let’s say you want to run for office at 12 years old, or something like that,” Judge James Wynn said. “The state can’t do anything? You’ve got to wait until Congress says they can’t run?”
“I can’t help what the Constitution says,” Bopp replied, adding that voters could solve the issue, “It’s amazing how many things we let the voters decide. … Voters can decide a lot of questions.”
His argument was seemingly embraced by Judge Julius Richardson, an appointee of former President Donald Trump, who said, “it’s what the Constitution says.” But Wynn, appointed by former President Barack Obama, pointed out that there isn’t any precedent from previous cases where judges adopted Bopp’s views on this topic.
Bopp said the same rationale applied to residency requirements as well. (States routinely, and without controversy, disqualify candidates for state and federal office because they don’t meet basic restrictions regarding residency, citizenship status, age, or if they have a criminal record.)
“Somebody from South Carolina can file (to run) for any seat they want to in North Carolina, never having lived there a day in their life, and there’s nothing North Carolina can do about it, or a court can do about it, until it goes to Congress?” Wynn asked Bopp later during the hearing.
“Congress can do something about it,” Bopp said. “The voters can do something about it. Come on, you think somebody’s gonna run from South Carolina and get elected in North Carolina?”
A coalition of liberal activists and constitutional scholars initiated the legal challenge against Cawthorn, arguing that he is banned from future office because of his role in the January 6 insurrection, particularly his militant rhetoric at a rally before the US Capitol was attacked. He has denied any wrongdoing and says the challenge is a political hit job that violates his rights.
In March, a federal district judge in North Carolina blocked the State Board of Elections from processing the challenge, in a major victory for Cawthorn. The challengers appealed and argued that the district judge improperly protected Cawthorn by misreading an amnesty law.
“We think the district court was wrong based on the plain language of the (Amnesty Act of 1872), the context and the history… the legislative history, later Congressional interpretations, as well as logic and common sense,” said Pressly Millen, an attorney for the challengers.
Several prominent constitutional scholars — and a federal judge in Georgia who oversaw some of the Greene-related proceedings — have said that the district judge in North Carolina wrongly applied the Amnesty Act of 1872 to Cawthorn because the law only shielded ex-Confederates.