Memorandum in Support of Cawthorn Move For Injunction

UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
MADISON CAWTHORN, an individual,
Plaintiff,
v.
MR. DAMON CIRCOSTA, in his official capacity

as Chair of the North Carolina State Board of
Elections, MS. STELLA ANDERSON, in her Civ. No. 5:22-cv-50-M
official capacity as a member of the North Carolina
State Board of Elections, MR. JEFF CARMON, in
his official capacity as a member of the North
Carolina State Board of Elections, MR. STACY
EGGERS IV, in his official capacity as a member
of the North Carolina State Board of Elections, MR.
TOMMY TUCKER, in his official capacity as a
member of the North Carolina State Board of
Elections, MS. KAREN BRINSON BELL, in her
official capacity as Executive Director of the North
Carolina State Board of Elections.
Defendants.
Plaintiff’s Memorandum in Support of Plaintiff’s Motion for Preliminary

Injunction
Pl.’s Mem. in Supp. of

Prelim. Inj.
Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 1 of 36

Table of Contents
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Summary of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Challenge Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Challenge Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Panel appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Conduct of panel hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cawthorn Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. Cawthorn has standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Rep. Cawthorn has an injury in fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Rep. Cawthorn’s injury is traceable to the NCSBE’s enforcement of the Challenge
Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Rep. Cawthorn’s injury is redressable by the court enjoining the statute as
unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. The Younger abstention doctrine does not apply because there is no
ongoing state proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. The North Carolina court stayed all candidacy challenges before the NCSBE.. . . . . . . 10
B. The current congressional districts are in effect, pending appeal. . . . . . . . . . . . . . . . . . 11
C. The NCSBE has no authority to decide the constitutional issues at hand. . . . . . . . . . . . 12
III. Cawthorn is entitled to a preliminary injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Cawthorn is likely to succeed on the merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. The statute is unconstitutional because its “reasonable suspicion” standard is
insufficient justification under the First Amendment to trigger a government
investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. The burden shifting provision of the Challenge Statute is unconstitutional under the
Due Process Clause of the Fourteenth Amendment because it requires Cawthorn to
prove a negative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3. The statute is unconstitutional under Article 1, § 5 of the U.S. Constitution because
Congress is the exclusive judge of the qualifications of its Members. . . . . . . . . . . 19

Prelim. Inj. ii

4. Application of Section Three of the Fourteenth Amendment to Cawthorn is
prohibited by federal law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Cawthorn will suffer irreparable harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. The balance of hardships favors Cawthorn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
D. Public interest favors injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Prelim. Inj. iii

Table of Authorities
Cases
Alabama v. White, 496 U.S. 325 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
City of Houston v. Hill, 482 U.S. 451, (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Clements v. Fashing, 457 U.S. 957 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Cox v. McCrery, No. Civ.A.06-2191, 2007 WL 97142 (W.D. La. Jan. 5, 2007) . . . . . . . . . . . . 20
Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Friends of Cap. Crescent Trail v. United States Army Corps of Engineers, 855 F. App’x 121 (4th
Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 18
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir.2002) . . . . . . . . . . . . . . . . . . . . . 24, 25
Hackford v. Utah, 827 F. App’x 808 (10th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Hall v. Toreros, II, Inc., 176 N.C. App. 309 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Hall v. Toreros, II, Inc., 363 N.C. 114 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Herrera-Martinez v. Garland, 22 F.4th 173 (4th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
L. Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154 (1971) . . . . . . . . . . . . . . . . 12, 13
Lowe v. Spears, 258 F. App’x 568 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
McFarland v. Am. Sugar Ref. Co., 241 U.S. 79 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) . . . . . . . . . . . . . 10

Prelim. Inj. iv

Moore v. Sims, 442 U.S. 415 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003) . . . . . . . . . . 26
North Carolina League, of Conservation Voters, Inc. v. Hall, No. 21 CVS 015426, 2022 WL
124616 (N.C.Super. Jan. 11, 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11
PDX N., Inc. v. Asaro-Angelo, 142 S. Ct. 69 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PDX N., Inc. v. Comm’r New Jersey Dep't of Lab. & Workforce Dev., 978 F.3d 871 (3d Cir.
2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ross v. Meese, 818 F.2d 1132 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Roudebush v. Hartke, 405 U.S. 15 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Speiser v. Randall, 357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
State ex rel. Chavez v. Evans, 446 P.2d 445 (N.M. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
W. & A.R.R. v. Henderson, 279 U.S. 639 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14
Waters v. Churchill, 511 U.S. 661 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Younger v. Harris, 401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Constitutions, Statutes, and Rules
N.C. Const. art. IV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
N.C. Const. art. IV, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
N.C.G.S. § 163-127.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13, 20

Prelim. Inj. v

N.C.G.S. § 163-127.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15, 20
N.C.G.S. § 163-127.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 15
N.C.G.S. § 163-127.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 15
N.C.G.S. § 163-127.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16
N.C.G.S. § 163-127.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
N.C.G.S. § 163-22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 13, 15, 26
U.S. Const. amend. XIV, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 21
U.S. Const. art. I, § 5, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States Statutes at Large, 42 Cong. Ch. 194, May 22, 1872, 17 Stat. 142 . . . . . . . . . . . . . 22
United States Statutes at Large, 55 Cong. Ch. 390, June 7, 1898, 30 Stat. 432 . . . . . . . . . . . . . 22
Other Authorities
6 Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States
52-63 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Black's Law Dictionary (11th ed. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559 (2015) . . 19, 20
Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const.
Comment. 87 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Kristen R. Lisk, Note, The Resolution of Contested Elections in the U.S. House of
Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev.
1213 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prelim. Inj. vi

Summary of the Nature of the Case
The fundamental right of an individual to run for political office; to not be subject to an
unjustified investigation and a requirement to “prove” his innocence; the proper role of Congress
and the States in determining the qualifications of a Member of Congress; and, ultimately,
whether state bureaucrats or voters will determine who is elected to Congress are at stake in this
litigation.
Plaintiff Rep. Madison Cawthorn (“Rep. Cawthorn”) currently serves as a Member of the
U.S. House of Representatives, for North Carolina’s 11th congressional district. Rep. Cawthorn
filed his candidacy, for the upcoming midterm elections, for North Carolina’s 13th congressional
district on December 7, 2021.
On January 10, 2022, several Challengers filed a Challenge with the North Carolina State
Board of Election (“NCSBE”) against Rep. Cawthorn. The Cawthorn Challenge alleges that Rep.
Cawthorn “does not meet the federal constitutional requirements for a Member of the U.S. House
of Representatives and is therefore ineligible to be a candidate for such office.” The Cawthorn
Challenge was based upon claims that Rep. Cawthorn engaged in “insurrection or rebellion”
against the United States and was ineligible to run for Congress under Section Three of the
Fourteenth Amendment to the U.S. Constitution. Rep. Cawthorn vigorously denies that he
engaged in insurrection or rebellion against the United States, but this litigation is not based on
Rep. Cawthorn’s factual defenses. Instead, this matter is before the court based upon various
constitutional challenges to the North Carolina Challenge Statute itself.
The Challenge Statute’s provision allows a Challenge to Rep. Cawthorn’s “qualifications” to

Prelim. Inj. 1

be a Candidate for Congress to be based upon only a “reasonable suspicion.” This provision
violates Rep. Cawthorn’s First Amendment rights in the same way a peaceful protestor’s rights
would be violated if arrested based upon only a reasonable suspicion.
Furthermore, based only on this “reasonable suspicion,” the Challenge Statute shifts the
burden of proof to Rep. Cawthorn to prove a negative (i.e., that he did not engage in
insurrection). This provision violates the Due Process Clause of the Fourteenth Amendment.
The Challenge Statute also reaches far beyond the State’s authority to regulate its own
elections, conduct counts and recounts of votes, and other administrative functions by allowing
the NCSBE to judge the qualifications of a Member of Congress, a power exclusively vested in
the United States House of Representatives. Because the Challenge Statute usurps Congress’
constitutional responsibilities, it violates Article 1, § 5 of the U.S. Constitution.
Finally, Congress used its constitutionally specified authority to remove the political
disability found in Section Three of the Fourteenth Amendment from any Representative other
than those who served during the 36th and 37th Congresses. Rep. Cawthorn is a Member of the
117th Session of Congress, so the 1872 Act removed any disability under Section Three from
Rep. Cawthorn. Since Section Three does not apply to Rep. Cawthorn (or any Member holding
office after the 37th Congress), the application of Section Three to Rep. Cawthorn is prohibited
by federal law.
Because Rep. Cawthorn is likely to succeed on the merits of his constitutional claims; he
would be irreparably harmed by the unconstitutional and unlawful enforcement of the Challenge
Statute; the balance of harms favors Rep. Cawthorn; and the public interest is served by

Prelim. Inj. 2

enjoining unconstitutional statutes, this Court should enjoin the NCSBE from enforcing the
Challenge Statute.
Statement of Facts
Challenge Statute
Under North Carolina law, any qualified voter registered in the same district (“Challenger”)
as the office of a candidate for “any elective office in the State” (“Candidate”) may file a
challenge that the Candidate does not meet the constitutional or statutory qualifications for the
office, including residency. (“Challenge”) N.C.G.S. §§ 163-127.1, 127.2(b); see generally
N.C.G.S. § 163-127.1, et seq. (“Challenge Statute”). A Challenge must be filed with the
election board receiving the notice of the candidacy no later than 10 business days after the close
of the filing period for notice of candidacy. N.C.G.S. § 163-127.2(a). The Challenge must be
made in a verified affidavit by a challenger, based on reasonable suspicion or belief of the facts
stated. Id. at (b) (emphasis added).
Challenge Process
A. Panel appointment
If the Challenge is filed against a Candidate for an office “contains territory in more than one
county but is less than the entire State,” the NCSBE1 will appoint a panel (“Panel”) to conduct
hearings on the Challenge. N.C.G.S. § 163-127.3(2). Under North Carolina law, the composition
1
Defendants Mr. Damon Circosta, Ms. Stella Anderson, Mr. Jeff Carmon, Mr. Stacy Eggers
IV, Mr. Tommy Tucker, all serve as members of the NCSBE. Defendant Karen Brinson Bell
serves as the NCSBE’s Executive Director. All Defendants are named in this suit in their official
capacities. For the purposes of this memorandum, “NCSBE” refers collectively to Defendants,
named in their official capacities.

Prelim. Inj. 3

of the Panel for such a Challenge must include: (1) “at least one member of the county board of
elections in each county in the district of the office”; (2) “an odd number of members, no fewer
than three and no more than five”; (3) appointed “members from each county in proportion to the
relative total number of registered voters of the counties in the district for the office”; and (4)
appointed, “to the extent possible, . . . members affiliated with different political parties in
proportion to the representation of those parties on the county boards of elections in the district
for the office.” Id.
B. Conduct of panel hearing
The Panel must: (1) “[w]ithin five business days after the challenge is filed, designate and
announce the time of the hearing and the facility where the hearing will be held”; (2) “[a]llow for
depositions prior to the hearing, if requested by the challenger or candidate before the time of the
hearing is designated and announced”; (3) “[i]ssue subpoenas for witnesses or documents, or
both, upon request of the parties or upon its own motion”; and (4) “[r]ender a written decision
within 20 business days after the challenge is filed and serve that written decision on the parties.”
N.C.G.S. § 163-127.4(a). The Panel must give notice of the hearing to the Challenger, the
Candidate, other candidates filing for the same office, the county chair for each political party,
and for those persons requesting notification. Id. at (b). The notice must include the copy of the
Challenge or a summary of its allegations. Id.
The Panel may allow evidence to be presented at the hearing, in the form of affidavits, or the
Panel may examine witnesses, who must testify under oath. Id. at (c)(1). The Panel has the
authority to issue subpoenas for witnesses or documents, or both. Id. The Panel may receive

Prelim. Inj. 4

evidence at the hearing from “any person with information concerning the subject of the
[C]hallenge.” Id. at (2). The hearing must be recorded by a reporter, and the full record must be
preserved by the Panel “until directed otherwise” by the NCSBE. Id. at (3).
After the hearing, the Panel “shall make a written decision on each [C]hallenge by separately
stating findings of facts, conclusions of law, and an order.” Id. at (d).
C. Burden of Proof
When a Candidate is subject to a Challenge, “[t]he burden of proof shall be upon the
candidate, who must show by a preponderance of the evidence of the record as a whole that he or
she is qualified to be a candidate for the office.” N.C.G.S. § 163-127.5(a) (emphasis added). If
the Challenge is based upon the Candidate’s residency, the Candidate must show: (1) an
abandonment of the first domicile, coupled with an intent not to return to the first domicile; (2)
the acquisition of a new domicile by actual residence at another place; and (3) the intent of
making the newer domicile a permanent domicile. Id. at (b). The statute does not designate what
type of proof the Candidate must provide to meet his burden of proof for any Challenge not
based upon residency. See id.
The NCSBE is vested with certain general powers, which include, inter alia: general
supervision of the elections in the State; appointing and advising members of the county boards
of elections; investigation and administration of election laws; determination of the form and
content of ballots; and certifying to the appropriate county boards of elections the names of
candidates for district offices. N.C.G.S. § 163-22. Therefore, if the NCSBE determines a
challenged Candidate does not meet the “qualifications” for office, it could remove that

Prelim. Inj. 5

Candidate’s name from the ballot, via its certification authority, thereby preventing that
Candidate from running for office.
D. Appeals
An appeal from a Panel decision may be appealed to the NCSBE as a whole by either the
Challenger or a Candidate “adversely affected by the panel’s decision.” N.C.G.S. § 163-127.6(a).
The appeal must be taken within two business days after the Panel serves its written decision on
the parties. Id. The NCSBE must base its appellate decision “on the whole record of the hearing
conducted by the panel and render its opinion on an expedited basis.” Id. From the final order or
decision by the NCSBE, appeal as of right lies directly to the North Carolina Court of Appeals.
Id.
Generally, the appellate courts review administrative agency decisions with a “highly
deferential” standard. Friends of Cap. Crescent Trail v. United States Army Corps of Engineers,
855 F. App’x 121, 125 (4th Cir. 2021) (finding agency action sustained if it “provides an
explanation of its decision that includes a rational connection between the facts found and the
choice made”). Questions of law are reviewed de novo. Herrera-Martinez v. Garland, 22 F.4th
173, 180 (4th Cir. 2022).
Cawthorn Challenge
Rep. Cawthorn currently serves as a Member of the U.S. House of Representatives, for
North Carolina’s 11th congressional district. Rep. Cawthorn filed his candidacy, for the
upcoming midterm elections, for North Carolina’s 13th congressional district on December 7,
2021. See NCSBE Candidate List Excerpt, Ex. A.

Prelim. Inj. 6

On January 10, 2022, several Challengers filed a Challenge against Rep. Cawthorn.
Cawthorn Challenge, Ex. B. The Cawthorn Challenge stated that Rep. Cawthorn “does not meet
the federal constitutional requirements for a Member of the U.S. House of Representatives and is
therefore ineligible to be a candidate for such office.” Id. at ¶ 1. The Cawthorn Challenge was
based upon claims that Rep. Cawthorn engaged in “insurrection or rebellion” against the United
States and was ineligible to run for Congress under Section Three of the Fourteenth Amendment
to the U.S. Constitution. U.S. Const. amend. XIV, § 3. Rep. Cawthorn vigorously denies he
engaged in “insurrection or rebellion” against the United States, but this litigation is not based in
Rep. Cawthorn’s factual defenses. Instead, this matter is before the court based upon various
constitutional challenges to the North Carolina Challenge Statute itself.
On January 11, 2022, the North Carolina Superior Court in Wake County issued a stay on all
Challenges filed with the NCSBE until a “final resolution” is reached on the ongoing litigation
challenging North Carolina’s recently-redistricted congressional districts. Stay Order, Ex. C. The
congressional districts, as drawn by the North Carolina legislature have been upheld, but the
Supreme Court of North Carolina will be hearing arguments on the districts on February 2, 2022.
North Carolina League, of Conservation Voters, Inc. v. Hall, No. 21 CVS 015426, 2022 WL
124616 (N.C. Super. Jan. 11, 2022). Rep. Cawthorn intends to run in the midterm elections in an
appropriate congressional district for North Carolina, after the congressional map question is
resolved (by either continuing his candidacy as filed or re-filing an a different district). Compl. at
¶ 48.

Prelim. Inj. 7

Argument
I. Cawthorn has standing.
For there to be a case or controversy under Article III, the plaintiff must have a “personal
stake” in the case—in other words, standing. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021). As a candidate for Congress, Rep. Cawthorn is subject to the Challenge Statute’s
provisions, and in fact, was challenged under the statute. For a plaintiff to establish standing
under Article III, he must (1) have suffered an “injury in fact”; (2) that is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992). Here, Rep. Cawthorn meets all three Article III standing requirements under Lujan.
A. Rep. Cawthorn has an injury in fact.
In order to have an injury in fact, a plaintiff must have an invasion of a legally protected
interest which is (a) concrete and particularized, . . . and (b) “actual or imminent, not conjectural
or hypothetical,” Id. at 560 (internal quotations and citations omitted).
Rep. Cawthorn is subject to the Challenge Statute. If successful, a Challenge to his
candidacy would prevent him from running for Congress, which is quintessential First
Amendment activity. Washington v. Finlay, 664 F.2d 913, 927-28 (4th Cir. 1981)
(acknowledging the First Amendment's protection of the freedom of association and of the rights
to run for office, to have one's name on the ballot, and to present one’s views to the electorate).
His potential injury is not in any way hypothetical—not only is Rep. Cawthorn subject to the
Challenge Statute, a Challenge was recently filed (although stayed) against him. The NCSBE has

Prelim. Inj. 8

the power to prevent Rep. Cawthorn’s name from appearing on the ballot, if a Challenge against
his candidacy is ultimately successful under the Challenge Statute. N.C.G.S. § 163-22.
B. Rep. Cawthorn’s injury is traceable to the NCSBE’s enforcement of the Challenge

Statute.
Rep. Cawthorn’s potential disqualification from running for office on the basis of a
successful Challenge Statute is directly traceable to the NCSBE. Under the Challenge Statute, the
NCSBE has the authority to determine, after a hearing, whether the challenged Candidate is
disqualified from running for that office. N.C.G.S. § 163-127, et seq. The decision of the NCSBE
is adjudicatory and is appealable to the North Carolina Court of Appeals. In this way, Rep.
Cawthorn’s constitutional injuries, as detailed herein, are directly traceable to government actors,
via enforcement by the NCSBE and subsequent appellate decisions by the North Carolina State
Court system.
C. Rep. Cawthorn’s injury is redressable by the court enjoining the statute as

unconstitutional.
By granting Rep. Cawthorn’s motion for injunctive relief, the NCSBE will be prevented
from enforcing the Challenge Statute against Rep. Cawthorn. Such an injunction will redress the
violations of Rep. Cawthorn’s constitutional rights under the First and Fourteenth Amendments
in their entirety.
II. The Younger abstention doctrine does not apply because there is no ongoing state
proceeding.
Federal courts must normally “fulfill their duty to adjudicate federal questions properly
brought before them.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984). However,
“interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever

Prelim. Inj. 9

federal claims have been or could be presented in ongoing state judicial proceedings that concern
important state interests.” Id. at 237-38. This principle of abstention is known as the Younger
abstention doctrine. See generally Younger v. Harris, 401 U.S. 37 (1971).
When state judicial proceedings have not commenced, Younger does not bar a federal court
from action. See Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433
(1982). Likewise, when the state proceedings do not afford an adequate opportunity to raise the
constitutional claims at issue, Younger does not apply. Moore v. Sims, 442 U.S. 415, 430 (1979).
Here, Younger does not apply because there is no “ongoing state judicial proceeding,” the current
congressional districts are in effect, pending appeal, and the NCSBE has no authority to decide
the constitutional issues before this Court.
A. The North Carolina court stayed all candidacy challenges before the NCSBE.
The Fourth Circuit has not reached the question of whether a state’s proceedings are
“ongoing,” for the purposes of a Younger analysis, if the proceeding is stayed. The Tenth Circuit
does not apply Younger to stayed proceedings. Hackford v. Utah, 827 F. App’x 808, 811 (10th
Cir. 2020) (finding a state court's choice to “stay[ ] its own proceedings [ ] favor of federal
resolution of the issues” by eliminating an “essential predicate to Younger abstention,” namely,
“the presence of an ongoing state prosecution”). The Third Circuit holds that “state proceedings
are ongoing for Younger abstention purposes, notwithstanding [a] state court's stay of
proceedings,” if the state proceeding “was pending at the time [the plaintiff] filed its initial
complaint in federal court.” PDX N., Inc. v. Comm’r New Jersey Dep't of Lab. & Workforce
Dev., 978 F.3d 871, 885 (3d Cir. 2020), cert. denied sub nom. PDX N., Inc. v. Asaro-Angelo, 142

Prelim. Inj. 10

S. Ct. 69 (2021).
The current congressional districts, drawn after the 2020 census, are subject to current
litigation before the North Carolina Supreme Court. See infra at Part II.B. Because of this
pending litigation, the Superior Court Division of Wake County issued a stay against all
candidacy challenges currently filed in the NCSBE. Stay Order, Ex. C. Here, the Tenth Circuit’s
reasoning is persuasive—the stay of North Carolina’s proceedings means that there is not an
ongoing proceeding that would counsel in favor of the application of the Younger abstention.
Moreover, the circumstances surrounding the reason why the stay was issued, the potential
consequences of the pending redistricting litigation, and the NCSBE’s lack of authority to decide
the constitutional claims all favor federal adjudication instead of abstention.
B. The current congressional districts are in effect, pending appeal.
After the 2020 Census, North Carolina’s General Assembly redrew the State’s congressional
districts; the new districts were ratified by law on November 4, 2021. North Carolina League, of
Conservation Voters, Inc., 2022 WL 124616 at *14. Several lawsuits were brought, challenging
the newly redrawn districts as unconstitutional. Id. at *1. The trial court panel denied the
plaintiff’s claims, id. at *115, thereby upholding the congressional districts as drawn, but
plaintiffs have appealed to the North Carolina Supreme Court.
As it relates to this matter, North Carolina’s ongoing litigation regarding redistricting does
not counsel against this Court’s ability to decide the constitutionality of the Challenge Statute.
First, whatever decision eventually is reached, North Carolina will undoubtedly have
congressional districts in place. If the current congressional districts remain in place, Rep.

Prelim. Inj. 11

Cawthorn is a candidate for the 13th congressional district and will be subject to a Challenge. If
the congressional districts are redrawn, Rep. Cawthorn intends to file his candidacy in the
appropriate district, Compl. at ¶ 48 , and would be subject to the Challenge Statute.
The redistricting litigation has nothing to do with the Challenge Statute, which is not
implicated. However, the Challenge Statute directly impacts Rep. Cawthorn, as he has been
challenged under it, and could be subject to such a Challenge, even if the redistricting causes him
to file his candidacy in a different congressional district.
C. The NCSBE has no authority to decide the constitutional issues at hand.
The judicial power of North Carolina is fully vested in the judicial branch of the state
government. N.C. Const. art. IV, § 1. The only exception to this sole judicial power is when the
North Carolina General Assembly vests an administrative agency, “pursuant to law such judicial
powers as may be reasonably necessary as an incident to the accomplishment of the purposes for
which the agencies were created.” N.C. Const. art. IV, § 3. An administrative agency “has no
power to promulgate rules and regulations which alter or add to the law it was set up to
administer or which have the effect of substantive law.” Hall v. Toreros, II, Inc., 176 N.C. App.
309, 318–19 (2006), aff’d, ordered not precedential, 363 N.C. 114 (2009) (internal citations
omitted). Thus, the NCSBE has no power to hear or decide a constitutional challenge to its own
statute, as mounted here.
In certain limited contexts, when state administrative agencies are charged with enforcement
and construction of [a] Rule, the agency’s view is entitled to “respectful consideration.” L.
Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154, 162–63 (1971). The Court

Prelim. Inj. 12

cautioned, however, that such consideration was dependent on the agency: (1) narrowly
construing the statute at issue; (2) being “fully cognizant” of protected constitutional freedoms;
and (3) not placing the burden of proof upon those subject to the agency’s determination. Id.
Here, the NCSBE does not have the authority to construe the Challenge Statute, so is not subject
to this “respectful consideration.”
Furthermore, the NCSBE is vested with certain general powers, which include: general
supervision of the elections in the State, appointing and advising members of the county boards
of elections, investigation and administration of election laws, determination of the form and
content of ballots, and certifying to the appropriate county boards of elections the names of
candidates for district offices. N.C.G.S. § 163-22.
Under the Challenge Statute, the NCSBE has the authority to determine whether a
Challenged Candidate is “qualified” to be on the ballot. See generally N.C.G.S. § 163-127.1, et
seq. Pursuant to its certification authority, the NCSBE, upon determining a Candidate is not
qualified, can remove or prevent that Candidate’s name from appearing on the ballot.
But the NCSBE does not have the authority to determine the constitutionality of the
Challenge Statute itself. Such action would violate the prohibition against an agency “alter[ing]
or add[ing] to the law it was set up to administer or which have the effect of substantive law.”2
Hall, 176 N.C. App. at 318–19. If the NCSBE determined all, or a portion, of the Challenge
2
Even if the NCSBE had the authority to construe the Challenge Statute, it has not demon-
strated it meets any of the requirements of: narrowing its construction or the NCSBE’s cognition
of the constitutional freedoms. In addition, the burden shifting framework of the Challenge Stat-
ute eliminates consideration of such construction. See Part III.A.2.

Prelim. Inj. 13

Statute was unconstitutional, the statute it is set up to administer would be altered, by definition.
III. Cawthorn is entitled to a preliminary injunction.
“Parties seeking a preliminary injunction must demonstrate that (1) they are likely to succeed
on the merits, (2) they are likely to suffer irreparable harm, (3) the balance of hardships tips in
their favor, and (4) the injunction is in the public interest.” Metro. Reg’l Info. Sys., Inc. v. Am.
Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013) (citing Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).
Rep. Cawthorn is entitled to a preliminary injunction because he can demonstrate all four
elements required. He is likely to succeed on the merits of his constitutional claims; the violation
of his constitutional rights leads inexorably to irreparable harm and the balance of hardships
favors Rep. Cawthorn. Likewise, enjoining the NCSBE from enforcing an unconstitutional
statute serves the public interest.
A. Cawthorn is likely to succeed on the merits.
1. The statute is unconstitutional because its “reasonable suspicion” standard is

insufficient justification under the First Amendment to trigger a government
investigation.
Running for political office is quintessential First Amendment activity and afforded great
protection. See Clements v. Fashing, 457 U.S. 957, 985 (1982), (Brennan J., dissenting) (finding
“[pursuing political office] is clearly protected by the First Amendment and restrictions on it
must be justified by the State's interest in ensuring the continued proper performance of current
public duties”); Washington, 664 F.2d at 927-28 (acknowledging the First Amendment's
protection of the freedom of association and of the rights to run for office, to have one's name on

Prelim. Inj. 14

the ballot, and to present one’s views to the electorate).
When an individual files a Challenge under the Challenge Statute claiming “reasonable
suspicion,” it automatically triggers a hearing by the NCSBE or by a Panel appointed by the
NCSBE. N.C.G.S. §§ 163-127.3; 127.4 (the NCSBE “shall” appoint a panel, the panel “shall”
designate, announce, and conduct a hearing on the Challenge, which includes the power to
subpoena and depose witnesses, and “shall” render a decision on the Challenge). The NCSBE is
an administrative agency authorized to carry out its statutorily defined powers and is therefore a
government actor, required to act within the boundaries of the U.S. Constitution. See N.C.G.S. §
163-22. When a Challenge is filed under the Challenge Statute, the Challenger is only required to
filed a verified affidavit, based on reasonable suspicion or belief of the facts stated disqualify the
Candidate from running for office.. N.C.G.S. § 163-127.2(b). (emphasis added).
When someone is exercising his First Amendment rights, reasonable suspicion is not enough
to infringe on the fundamental right concerned. For instance, police are not able to arrest
someone who is peacefully protesting without probable cause. Tobey v. Jones, 706 F.3d 379, 387
(4th Cir. 2013); see also Lowe v. Spears, 258 F. App’x 568, 570 (4th Cir. 2007) (holding
arresting person solely based on speech that questions or opposes police action violates First
Amendment) (citing City of Houston v. Hill, 482 U.S. 451, 462–63, (1987)). Probable cause
means “a fair probability that contraband or evidence of a crime will be found.” Alabama v.
White, 496 U.S. 325, 330 (1990). Reasonable suspicion is a less demanding standard than
probable cause. Id. “Reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause, but also . . . can arise from

Prelim. Inj. 15

information that is less reliable than that required to show probable cause.” Id.
Although the Challenge Statute does not implicate a criminal penalty, the evaluation of the
constitutional issues here are analogous—a Challenged Candidate will have to defend himself via
the production of evidence and be subject to a hearing, similar to someone who is unlawfully
arrested for peacefully protesting. The Court has been clear that a reasonable suspicion standard
is not enough to infringe upon the peaceful protestor’s right to free speech—likewise, it cannot
be enough to infringe upon someone’s First Amendment right to run for political office.
2. The burden shifting provision of the Challenge Statute is unconstitutional under

the Due Process Clause of the Fourteenth Amendment because it requires
Cawthorn to prove a negative.
When a Candidate is subject to a Challenge, “[t]he burden of proof shall be upon the
candidate, who must show by a preponderance of the evidence of the record as a whole that he or
she is qualified to be a candidate for the office.” N.C.G.S. § 163-127.5(a) (emphasis added). In
the case of a Challenge based upon residency, the proof the Candidate must provide is relatively
straightforward—documents showing a change of address could easily be provided by the
Candidate. The same is not true for a Challenge filed based on the “disqualification clause” of the
Fourteenth Amendment. Under the Challenge provision, the Candidate is required to prove by a
preponderance of evidence showing he didn’t do something (e.g., prove that he didn’t engage in
“insurrection or rebellion”). Such burden shifting is unconstitutional under Due Process Clause
of the Fourteenth Amendment.
When processes implicate free speech, “the operation and effect of the method by which
speech is sought to be restrained must be subjected to close analysis and critical judgment in the

Prelim. Inj. 16

light of the particular circumstances to which it is applied.” Speiser v. Randall, 357 U.S. 513,
520 (1958) (internal citations omitted). The vindication of legal rights often depends “on how the
factfinder appraises the facts than on a disputed construction of a statute or interpretation of a
line of precedents.” Id. (emphasis added). Thus, the United States Supreme Court held that “the
procedures by which the facts of the case are determined assume an importance fully as great as
the validity of the substantive rule of law to be applied. And the more important the rights at
stake the more important must be the procedural safeguards surrounding those rights.” Id. at
520-21. This is especially true because “only considerations of the greatest urgency can justify
restrictions on speech,” and so the procedural safeguards protecting free speech “are of special
importance and the validity of the restraint may turn on the safeguards which they afford.” Id. at
521.
In both criminal and civil contexts, the Court has struck down state statutes unfairly shifting
the burden of proof. Id. at 523-24 (citing McFarland v. Am. Sugar Ref. Co., 241 U.S. 79, 86
(1916) (criminal); W. & A.R.R. v. Henderson, 279 U.S. 639 (1929) (civil)). This principle holds
true whether the process at issue is administrative or judicial. Waters, 511 U.S. at 669–70
(upholding Speiser and finding “speech can be chilled and punished by administrative action as
much as by judicial processes”).
The Speiser Court held that when, throughout the judicial and administrative proceedings,
the burden lies on the individual to prove he “falls outside” of the statutory framework at issue,
such burden shifting violates the Due Process Clause of the Fourteenth Amendment. Speiser, 357
U.S. at 522, 525-26. (finding where “transcendent value of speech is involved, due process

Prelim. Inj. 17

certainly requires . . . the State bear the burden of persuasion to show that the appellants
engaged in criminal speech”). When the statutory framework violates due process, the person
subject to such a statute is “ not obliged to take the first step in such a procedure.” Id. at 529.
Those running for political office are sometimes required to provide “proof” that they are not
members of organizations that advocated for the violent overthrow of the government. Id. at 527
(finding principal aim of those statutes was not to penalize political beliefs but to deny positions
to persons supposed to be dangerous because the position might be misused to the detriment of
the public). But in all of those cases, the candidate was only required to sign an affirmative oath
pledging loyalty to the country and to the Constitution in order to meet his “burden of proof.” Id.
at 528. Once the Candidate signed such a “loyalty oath,” no further proof was required for the
Candidate to prove his right to retain his position. Id.
The Waters Court recognized that in some contexts, such as public employment, the
government’s role justified giving it a “freer hand in regulating the speech.” Waters, 511 U.S. at
671. Here, the government’s role does not give it a freer hand to regulate one of the core
constitutional rights—that of the Candidate’s exercise of his First Amendment right of running
for political office. Thus, since the Challenge statute would require the Candidate to prove he
didn’t do what he is accused of doing by the Challenger’s “reasonable suspicion,” it violates the
Due Process Clause of the Fourteenth Amendment.
Furthermore, the appellate courts review administrative agency decisions and underlying
factual conclusions for those decisions with a “highly deferential” standard. Friends of Cap.
Crescent, 855 F. App’x 121 at 125. This deferential standard would further violate the

Prelim. Inj. 18

Candidate’s due process rights by deferring to factual conclusions arrived at by a process that
itself violates those same rights.
The Challenge Statute’s burden shifting provision violates the Due Process Clause of the
Fourteenth Amendment by requiring Rep. Cawthorn prove a negative (i.e., that he did not engage
in “insurrection or rebellion.”).
3. The statute is unconstitutional under Article 1, § 5 of the U.S. Constitution because

Congress is the exclusive judge of the qualifications of its Members.
Each House shall be the Judge of the Elections, Returns and Qualifications of its
own Members, and a Majority of each shall constitute a Quorum to do Business;
but a smaller Number may adjourn from day to day, and may be authorized to
compel the Attendance of absent Members, in such Manner, and under such
Penalties as each House may provide.
U.S. Const. art. I, § 5, cl. 1.
Voters have unfettered discretion in voting to independently evaluate whether federal
candidates meet the constitutional qualifications for office. Derek T. Muller, Scrutinizing Federal
Electoral Qualifications, 90 Ind. L.J. 559, 592 (2015) (“Muller”) (citations omitted). But
Congress has an exclusive role in judging the qualifications of its own members to determine if
they are eligible to take a seat in Congress. Id. at 611 (collecting cases). This exclusive role is
consistent with the Supreme Court's logic in Roudebush v. Hartke. 405 U.S. 15 (1972). R. Vance
Hartke was declared the winner of the race for U.S. Senator, but Indiana law authorized a
recount. Id. at 16-17. The Court found that the State of Indiana had a broad power to regulate the
election of Senators, which included conducting and overseeing recounts. Id. at 24. The
Roudebush Court held that a recount doesn’t usurp the Senate’s function because it doesn’t
“frustrate the Senate's ability to make an independent final judgment.” Id. at 25-26 (cleaned up).

Prelim. Inj. 19

Because the Senate was still free to accept or reject the apparent winner in either count, and to
conduct its own recount, if it chose, the state recount did not violate the Article 1, § 5 of the
Constitution. Id. Two cases, one prior to Roudebush and one subsequent to it, also support the
principle at issue. In the first, an allegedly unqualified individual was excluded from the ballot,
and the Supreme Court of New Mexico found that whether the candidate was a “sojourner” or an
“inhabitant” of New Mexico, was not for the State to decide, but rather, was a matter for
Congress. State ex rel. Chavez v. Evans, 446 P.2d 445, 448 (N.M. 1968). In the other, the
individual was included, but the court erred on the side of allowing the candidate to appear on the
ballot and of deferring to Congress. Cox v. McCrery, No. Civ.A.06-2191, 2007 WL 97142, at *1
(W.D. La. Jan. 5, 2007).
Thus, the power delineated to states is narrow—states cannot interfere with Congress's
ability to make an independent judgment, and states can only engage in a ministerial manner, not
an adjudicative manner. Kristen R. Lisk, Note, The Resolution of Contested Elections in the U.S.
House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U.
L. Rev. 1213, 1223 (2008). “If a state refuses to put a candidate on the ballot because it believes
the candidate for a house of Congress is not qualified, that state is effectively usurping the
function of Congress” by making its own independent evaluation of the Candidate’s
qualifications. Muller, 90 Ind. L.J. at 594–95.
Here, the Challenge Statute permits the State of North Carolina to make its own independent
evaluation of whether a Candidate is constitutionally qualified to be a Member of the U.S. House
of Representatives. N.C.G.S. §§ 163-127.1, 127.2(b). This function reaches far beyond the

Prelim. Inj. 20

State’s authority to regulate its elections, conduct counts and recounts of votes, and other
administrative functions allowed by our system of federalism. North Carolina cannot frustrate the
House of Representative’s ability to make its independent, final judgment of the qualifications of
a Member. Because the Challenge Statute directly usurps Congress’ constitutional
responsibilities, it violates Article 1, § 5 of the U.S. Constitution.
4. Application of Section Three of the Fourteenth Amendment to Cawthorn is

prohibited by federal law.
Section Three of the Fourteenth Amendment reads,
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. But Congress
may by a vote of two-thirds of each House, remove such disability.
U.S. Const. amend. XIV, § 3 (emphasis added). Of course, Congress does not have the power to
“repeal” a constitutional Amendment, but the plain language of the Amendment itself gave
Congress the power to remove the disability in Section Three. Removing the disability of being
prevented from serving as a Member of Congress is not a “pardon,” as a pardon is an “act or an
instance of officially nullifying punishment or other legal consequences of a crime.” Pardon,
Black's Law Dictionary (11th ed. 2019). Congress did not repeal this provision of the
Constitution; it did not “pardon” any Members from crimes. But Congress did specifically
remove the political disability defined in Section Three in a series of acts passed by the requisite

Prelim. Inj. 21

two-thirds of both Houses of Congress, some of which apply to Rep. Cawthorn, if he were
erroneously determined to have “engaged in insurrection or rebellion” against the United States.
The first is the Amnesty Act of 1872, which reads, “all political disabilities imposed by the
third section of the fourteenth amendment to the Constitution of the United States are hereby
removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth
and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United
States, heads of departments, and foreign ministers of the United States.” United States Statutes
at Large, 42 Cong. Ch. 194, May 22, 1872, 17 Stat. 142 (“1872 Act”). By the plain language of
this Act, the political disability was removed from any Representative other than those of the two
enumerated Congresses. Rep. Cawthorn is a Member of the 117th Session of Congress, so the
1872 Act removed any disability under Section Three from Rep. Cawthorn.
The second is the Amnesty Act of 1898, which reads, “the disability imposed by section
three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is
hereby removed.” United States Statutes at Large, 55 Cong. Ch. 390, June 7, 1898, 30 Stat. 432
(“1898 Act”). The plain language of the 1898 Act removes the disability from any of the listed
officeholders, etc. who had previously incurred such a disability (i.e., everyone else whose
disability wasn’t previously removed under the 1872 Act).
Both Acts were passed following the Civil War. The 1898 Act’s use of the word
“heretofore” indicates a backwards reach into past events, obviously the Civil War. However, the
1872 Act does not include that same backwards perspective. The results of the differences in
perspectives between the Acts can be seen in Congress’ application of the 1898 Act.

Prelim. Inj. 22

In 1936, the House of Representatives refused to seat Victor Berger, a member of the House
of Representatives who was excluded from office after criticizing American involvement in
World War I. See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth
Amendment, 36 Const. Comment. 87, 130 (2021). As Magliocca notes, Berger’s case is a quirky
example that predates modern First Amendment doctrine. Id. The House did not even consider
the 1872 Act when determining whether Berger could be seated, instead focusing only on the
language of the 1898 Act. 6 Clarence Cannon, Cannon's Precedents of the House of
Representatives of the United States 52-63 (1936). In Berger’s case, the House held that the
“heretofore” language in the 1898 Act meant the removal of the disabilities could only apply to
disabilities incurred previously, but Congress could not remove future disabilities. Id. This
reasoning ignores the plain language of the 1872 Act and the disability defined in Section Three
altogether.
Section Three does not specify Congress only has the power to remove past disabilities, it
specifies Congress has the power to remove “such disability.” “Such disability” refers to the
disability of someone who has previously taken an oath as a member of Congress who “shall
have engaged” in insurrection from taking office. “Shall have” followed by a past participle
forms the future perfect tense and shows an action will occur before another action in the future.3
The grammatical reading of Section Three means that Congress had the power to remove “such
3
Elizabeth O’Brian, What is future perfect tense?, GRAMMAR REVOLUTION, (Jan. 28, 2022,
2:08 PM), https://www.english-grammar-revolution.com/future-perfect-tense.html

Prelim. Inj. 23

disability: for both Members who had incurred the disability and those who had not incurred such
disability, but could if they engaged in the applicable prohibitions in the future.
Rep. Cawthorn has not been convicted of any crime, so Section Three or the 1872 Act
cannot be viewed as a prospective pardon. Section Three refers entirely to the political, not
criminal, consequences of “insurrection.” The plain language of the 1872 Act removes this
political consequence from any Representative other than those who served during the 36th and
37th Congresses. Rep. Cawthorn is a Member of the 117th Session of Congress, so the 1872 Act
removed the ability to apply Section Three to Rep. Cawthorn. Since Section Three does not apply
to Rep. Cawthorn (or any Member holding office after the 37th Congress), the application of
Section Three to Rep. Cawthorn is prohibited by federal law.
B. Cawthorn will suffer irreparable harm.
Deprivation of a constitutional right, even for a short period of time, constitutes irreparable
harm. Elrod v. Burns, 427 U.S. 347, 373 (1976).“When the harm alleged by the plaintiff is the
deprivation of a constitutional right, the likelihood of success on the merits is so “inseparably
linked” to the proving of an actual harm that the court may proceed directly to consider the merits
of the plaintiff's action.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 511 (4th Cir.2002)
(internal quotation marks omitted). As a general rule, “the denial of a constitutional right ...
constitutes irreparable harm for purposes of equitable jurisdiction.” Ross v. Meese, 818 F.2d
1132, 1135 (4th Cir. 1987).
As analyzed supra, the Challenge Statue violates Rep. Cawthorn’s First Amendment rights
by allowing a Challenge to be based upon a voter’s “reasonable suspicion.” Part III.A.1. Further,

Prelim. Inj. 24

the Challenge Statute’s requirement that Rep. Cawthorn prove, by a preponderance of the
evidence, that he is not disqualified, violates his due process rights under the Fourteenth
Amendment. Part III.A.2. The Challenge Statute is also unconstitutional under Article 1, § 5 of
the U.S. Constitution because Congress is the exclusive judge of the qualifications of its
Members. Part III.A.3. Finally, application of Section Three of the Fourteenth Amendment to
Rep. Cawthorn is prohibited by federal law. Part III.A.4.
Because the Challenge Statute violates such fundamental constitutional and legal rights, and
Rep. Cawthorn is subject to the Challenge Statute, he suffers irreparable harm
C. The balance of hardships favors Cawthorn.
The likelihood of success on the merits is the first and primary factor to analyze when
considering a motion for preliminary injunction on constitutional claims. Giovani Carandola,
Ltd. 303 F.3d at 511. If this Court finds Rep. Cawthorn is likely to succeed on the merits, it will
necessarily have found that the Challenge Statute is unconstitutional on the basis of all, or some
of, Rep. Cawthorn’s claims. Depriving Rep. Cawthorn of his constitutional right to run for
political office, or forcing him to defend his right to do so based upon a constitutionally flawed
process, would be a monumental hardship.
If enjoined, the NCSBE will suffer no lasting hardship from the inability to enforce an
unconstitutional process. Enjoining the NCSBE from enforcing the Challenge Statute will not
prevent its ability to administer either the primary or general elections this year. It would still be
able to: generally supervise the elections in the State; appoint and advise members of the county
boards of elections; investigate and administer other election laws; determine the form and

Prelim. Inj. 25

content of ballots; and certify to the appropriate county boards of elections the names of
candidates for district offices (absent the ability to prevent unconstitutionally challenged
candidates from running). See N.C.G.S. § 163-22.
D. Public interest favors injunction.
Upholding constitutional rights serves the public interest. Newsom ex rel. Newsom v.
Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003). In contrast, the public interest is
harmed when unconstitutional statutes are enforced and used against those seeking to lawfully
exercise their constitutional rights.
But most importantly, the public interest is served in choosing the People’s representatives
by democratic processes, not by state bureaucrats, which Challengers propose here. The
undemocratic scheme contained in the North Carolina Challenge provisions supplants voters for
state bureaucrats who will determine who can represent the People. This is fundamentally
anti-democratic and contrary to the public interest.
Conclusion
The fundamental right of an individual to run for political office; to not be subject to an
unjustified investigation; to not be required to “prove” his innocence; the proper role of Congress
and the States in determining the qualifications of a Member of Congress; and, ultimately,
whether state bureaucrats or voters will determine who is elected to Congress are at stake in this
litigation.

Prelim. Inj. 26

Rep. Cawthorn has standing in this litigation as he has suffered an injury in fact which is
traceable to the NCSBE’s enforcement of the Challenge Statute, and his injury is redressable by
an injunction of the same. The Younger abstention doctrine does not apply hear because the state
administrative procedure has been stayed, the NCSBE cannot hear constitutional challenges to its
own statute, as mounted here, and all other factors weigh in favor of resolution of the issues
raised by this Court.
The Challenge Statute’s provision allows a Challenge to Rep. Cawthorn’s “qualifications” to
be a Candidate for Congress based upon only a “reasonable suspicion.” This provision violates
Rep. Cawthorn’s First Amendment rights in the same way a peaceful protestor’s rights would be
violated if arrested based upon a reasonable suspicion.
The Challenge Statute’s burden shifting provision violates the Due Process Clause of the
Fourteenth Amendment by requiring Rep. Cawthorn prove a negative (i.e., that he did not engage
in an “insurrection or rebellion”).
The power in the Challenge Statute reaches far beyond the State’s authority to regulate its
elections, conduct counts and recounts of votes, and other administrative functions allowed by
our system of federalism. North Carolina cannot invade or frustrate the House of
Representative’s exclusive power to make its independent, final judgment of the qualifications of
a Member. Because the Challenge Statute directly usurps Congress’ constitutional
responsibilities, it violates Article 1, § 5 of the U.S. Constitution.
Finally, Congress used its constitutionally specified authority to remove the political
disability found in Section Three of the Fourteenth Amendment from any Representative other

Prelim. Inj. 27

than those who served during the 36th and 37th Congresses. Rep. Cawthorn is a Member of the
117th Session of Congress, so the 1872 Act removed the ability to apply Section Three to Rep.
Cawthorn. Since Section Three does not apply to Rep. Cawthorn (or any Member holding office
after the 37th Congress), the application of Section Three to Rep. Cawthorn is prohibited by
federal law.
Because Rep. Cawthorn is likely to succeed on the merits of his constitutional and legal
claims; he would be irreparably harmed by the unconstitutional and unlawful enforcement of the
Challenge Statute; the balance of harms favors Rep. Cawthorn; and the public interest is served
by enjoining unconstitutional statutes, this Court should enjoin the NCSBE’s ability to enforce
the Challenge Statute.
Dated: February 1, 2022
Respectfully Submitted, /s/ James Bopp, Jr.

James Bopp, Jr., Ind. Bar No. 2838-84*
/s/ Josh Howard Melena S. Siebert, Ind. Bar No. 35061-15*
Gammon, Howard & Zeszotarski, PLLC THE BOPP LAW FIRM
The Water Tower Building 1 South 6th Street
115 ½ West Morgan Street Terre Haute, Indiana 47807
Raleigh, NC 27601 Telephone: (812) 232-2434
jhoward@ghz-law.com Facsimile: (812) 235-3685
Phone: (919) 521-5878 jboppjr@aol.com
Fax: (919) 882-1898 msiebert@bopplaw.com
State Bar No. 26902 Attorneys for Plaintiff
Local Civil Rule 83.1(d) Counsel for *Special Appearance Pending
Plaintiff

Prelim. Inj. 28

Certificate of Compliance with Type-Volume Limit
I hereby certify that this document complies with the word limit of Local Civil Rule (f)(2)(3)
because, excluding the parts of the document exempted by Local Civil Rule (f)(1), this document
contains 7,749 words and is less than 30 pages. All word counts were generated by the word
processing software used.
February 1, 2022 /s/ Josh Howard

Josh Howard
Counsel for Plaintiff

Prelim. Inj. 29

Certificate of Service
I hereby certify that on February 1, 2022, a copy of the foregoing document was served upon
the following persons by email and on February 1, 2022 by hand delivery:
Mr. Paul Cax

Associate General Counsel
North Carolina State Board of Elections
430 N. Salisbury St.
Raleigh, NC 27611
/s/ Josh Howard

Attorney for Plaintiff

Prelim. Inj. 30

Exhibit A
to
Memorandum in Support of Motion for Preliminary Injunction
NCSBE Candidate List Excerpt
Case 5:22-cv-00050-M Document 9-1 Filed 02/01/22 Page 1 of 2

STATE BOARD OF ELECTIONS CANDIDATE DETAIL LIST
CONTEST NAME / CANDIDATE NAME / FILING DATE / RESIDENTIAL ADDRESS MAILING ADDRESS CAMPAIGN PHONE CAMPAIGN EMAIL
SEAT NAME / PARTY NAME ON BALLOT CAND PTY
US HOUSE OF REPRESENTATIVES DISTRICT 13
LIB
US HOUSE OF REPRESENTATIVES DISTRICT 13 CAWTHORN, DAVID 12/07/2021 657 N RUGBY RD (770) 608-8683 SMITH@MADISONCAWTHORN.C
MADISON OM
REP Madison Cawthorn REP HENDERSONVILLE, NC

28791
US HOUSE OF REPRESENTATIVES DISTRICT 14 GASH, ERIC 12/07/2021 705 CICCONE DR PO BOX 6232 (828) 582-0008 ERIC@ERICGASH.COM
DEM Eric Gash DEM HENDERSONVILLE, NC HENDERSONVILLE, NC

28791 28793
US HOUSE OF REPRESENTATIVES DISTRICT 14
LIB
US HOUSE OF REPRESENTATIVES DISTRICT 14 EDWARDS, CHARLES 12/07/2021 127 BERRY CREEK DR (828) 785-4177 CHUCK@CHUCKEDWARDSNC.C
MARION OM
REP Chuck Edwards REP FLAT ROCK, NC 28731
US HOUSE OF REPRESENTATIVES DISTRICT 14 MCKIM, KENNETH C M 12/08/2021 181 CHESTNUT LN PO BOX 166 CAMPAIGN@MCKIMFORCONGRE
SS.COM
REP Ken McKim REP HIGHLANDS, NC 28741 HIGHLANDS, NC 28741
US HOUSE OF REPRESENTATIVES DISTRICT 14 HONEYCUTT, RODNEY H 12/08/2021 47 MURRAY DEBRUHL RD PO BOX 2632 (828) 275-6848 INFO@CUTTFORCONGRESS.CO
M
REP Rod Honeycutt REP ALEXANDER, NC 28701 WEAVERVILLE, NC 28787
NC SUPREME COURT ASSOCIATE JUSTICE SEAT INMAN, LUCY NOBLE 12/06/2021 2627 DOVER RD PO BOX 10541 (919) 578-8021 INFO@LUCYINMANFORJUSTICE.
03 COM
DEM Lucy Inman DEM RALEIGH, NC 27608 RALEIGH, NC 27605
NC SUPREME COURT ASSOCIATE JUSTICE SEAT

03
LIB
NC SUPREME COURT ASSOCIATE JUSTICE SEAT DIETZ, RICHARD DONALD 12/06/2021 721 VIRGINIA AVE PO BOX 97275 (202) 207-8556 JUDGEDIETZ@JUDGEDIETZ.COM
03
REP Richard Dietz REP RALEIGH, NC 27604 RALEIGH, NC 27624
Jan 18, 2022 4:04 pm CONT_CAND_rpt_2.rpt Page 6 of 121

Source: https://s3.amazonaws.com/dl.ncsbe.gov/Elections/2022/Candidate%20Filing/2022_Primary_Election_Candidate_PDFs/2022_primary_candidate_detail_list_federal_and_state.pdf
Exhibit B
to
Memorandum in Support of Motion for
Preliminary Injunction
Cawthorn Challenge

STATE OF NORTH CAROLINA BEFORE THE NORTH CAROLINA
STATE BOARD OF ELECTIONS
)
In re Challenge to )
the constitutional qualifications of ) Notice of
Rep. Madison Cawthorn
_________________
)
)
Candidacy cBmQEIVED
JAN I ORfC'D
INTRODUCTION STATE BOARD OF ELECTIONS

1. The Challengers in this action ("Challengers"), registered voters in the
13th Congressional District, have reasonable suspicion, pursuant to N.C. GEN. STAT.
§ 163-127, that Representative Madison Cawthorn, a candidate for North Carolina's
13th Congressional District, does not meet the federal constitutional requirements
for a Member of the U.S. House of Representatives and is therefore ineligible to be a
candidate for such office.
2. Under North Carolina law, when a challenger provides "reasonable
suspicion or belief' of facts establishing that a candidate "does not meet the
constitutional ... qualifications for the office," then "[t]he burden of proof shall be
upon the candidate" to "show by a preponderance of the evidence . .. that he or she
is qualified to be a candidate for the office." N.C. GEN. STAT.§§ 163-127.2(b), 163-
127.5(a).
3. Under Section Three of the Fourteenth Amendment to the U.S.
Constitution, known as the Disqualification Clause, "No Person shall be a .. .
Representative in Congress ... who, having previously taken an oath, as a member
1
of Congress ... to support the Constitution of the United States, shall have engaged
in insurrection or rebellion against the same."
4. Persons who trigger this constitutional provision are disqualified from
congressional office, just as persons who fail to meet the age, citizenship, and
residency requirements of Article I, section 2 of the Constitution are disqualified
from congressional office. "The oath to support the Constitution is the test. The idea
being that one who had taken an oath to support the Constitution and violated it,
ought to be excluded from taking it again, until relieved by Congress." Worthy v.
Barrett, 63 N.C. 199, 204 (1869). Consequently, such persons "do0 not meet the
constitutional ... qualifications for the office" under N.C. GEN. STAT.§ 163-127.2(b).
5. An "insurrection" or "rebellion" under the Disqualification Clause
includes actions against the United States with the intent to overthrow the
government of the United States or obstruct an essential constitutional function.
6. The events of January 6, 2021 amounted to an insurrection or a
rebellion under Section Three: a coordinated effort to prevent the Vice President of
the United States and the United States Congress from fulfilling their
constitutional roles by certifying President Biden's victory, and to illegally extend
then-President Trump's tenure in office.
7. In 1869, the North Carolina Supreme Court issued the leading
national precedent on the meaning of "engage" under Section Three. The Court held
that a candidate "engages" in a rebellion or insurrection for the purposes of the
Disqualification Clause by "[v]oluntarily aiding the rebellion, by personal service, or
2
by contributions, other than charitable, of any thing that was useful or necessary."
Worthy v. Barrett, 63 N.C. 199, 203 (1869).
8. Planning or helping plan an insurrection or rebellion satisfies that
definition. So does planning a demonstration or march upon a government building
that the planner knows is substantially likely to (and does) result in insurrection or
rebellion, as it constitutes taking voluntary steps to contribute, "by personal
service," a "thing that was useful or necessary" to the insurrection or rebellion. And
knowing that insurrection or rebellion was likely makes that aid voluntary.
9. As described below, and as set forth in Challengers' affidavits, the
demonstration at the Ellipse and related march on the U.S. Capitol, and their
endorsement by prominent incumbent House Members (including Representative
Cawthorn), Senators, and the incumbent President, led directly, intentionally, and
foreseeably to the insurrectionists' violent assault on the Capitol. 1
10. Challengers have reasonable suspicion that Representative Cawthorn
was involved in efforts to intimidate Congress and the Vice President into rejecting
valid electoral votes and subvert the essential constitutional function of an orderly
and peaceful transition of power. Challengers have reasonable suspicion that
Cawthorn was involved in either planning the attack on January 6, or alternatively
the planning of the pre-attack demonstration and/or march on the Capitol with the
1This notice of candidacy challenge uses the term "insurrectionists" without

prejudice as to whether the events of January 6 may also constitute a "rebellion"
within the meaning of the Disqualification Clause.
3
advance knowledge that it was substantially likely to lead to the attack, and
otherwise voluntarily aided the insurrection.
11. Representative Cawthorn promoted the demonstration ahead of time,
tweeting, "the future of this Republic hinges on the actions of a solitary few ... It's
time to fight," and he spoke at the demonstration. Furthermore, there are reports
that he met with planners of the January 6 demonstration, and possibly of the
assault on the Capitol, beforehand. The stated goal of the organizers was to
pressure Vice President Pence into disregarding the electoral votes from several
states and declaring Trump the winner of the 2020 election. The likelihood of
violence during the implementation of this plan was plain to bystanders and
probably more so to those intimately involved. Before the demonstration, violent
groups announced they were going to attend it. Plans for violence-and specifically
occupying the Capitol to prevent the certification vote or violently influence its
outcome-were so prevalent that one reporter has remarked that "[a]nyone with a
Twitter account and an hour of time to kill could have warned about the potential
for violence on Jan. 6-and many did." 2
12. Representative Cawthorn has a history, leading up to and continuing
after his swearing-in as a Member of the U.S. House of Representatives, of
advocating for political violence. He has also made supportive statements about the
2 Quinta J urecic, Why Didn't the FBI Review Social Media Posts Announcing Plans
for the Capitol Riot?, LAWFARE (June 29, 2021), https://www.lawfareblog.com/why-
didnt-fbi-review-social-media-posts-announcing-plans-capitol-riot; Martha Mendoza
& Juliet Linderman, Officers maced, trampled: Docs expose depth of Jan. 6 chaos,
AP NEWS (Mar. 10, 2021), https://bit.ly/3F2Hi26.
4
insurrectionists who stormed the Capitol, describing them as "political hostages"
and "political prisoners."
13. Collectively, Cawthorn's actions and the events of January 6 provide
reasonable suspicion that, under the Disqualification Clause, he is constitutionally
disqualified from running for congressional office.
14. Because Challengers have reasonable suspicion and belief of facts
establishing that Representative Cawthorn is disqualified from running for
congressional office, Representative Cawthorn has the burden of proving "by a
preponderance of the evidence of the evidence of the record as a whole that he Dis
qualified to be a candidate for the office." N.C. GEN. STAT.§ 163-127.5(a).
15. Therefore, Representative Cawthorn must prove that he was not
involved in the insurrection of January 6, 2021.
16. In accordance with N.C. GEN. STAT.§ 163-127.4(a), Challengers intend
to depose Representative Cawthorn before the hearing, and request subpoenas for
witnesses and documents, including documents that Representative Cawthorn or
his staff may possess involving the planning of the January 6 events that could
shed light on his qualification for office under Section Three.
17. If Representative Cawthorn is unable to meet his burden, the panel
appointed by the North Carolina State Board of Elections ("State Board") must find
him disqualified to be a candidate for the office of U.S. Representative.
5
FILING AND VENUE
18. Representative Cawthorn is running for the House of Representatives
in the 13th Congressional District and has accordingly filed his candidacy with the
State Board. N.C. GEN. STAT.§ 163-106.2(a). Due to the recent North Carolina
Supreme Court ruling staying the filing deadline for candidates, this challenge is
properly and timely filed with the State Board. Id. § 163-127 .2(a).
19. Because the 13th District encompasses multiple counties but not the
entire state, the State Board will appoint a panel of five county board members
from the counties within the district. N.C. GEN. STAT.§ 163-127.3(2).
STATUTORY BACKGROUND
20. Under North Carolina law, "[a]ny qualified voter registered in the
same district as the office for which the candidate has filed or petitioned" may file a
candidacy challenge by filing an affidavit that they have "reasonable suspicion or
belief of the facts stated ... that the candidate does not meet the constitutional or
statutory qualifications for office," and an appropriate panel will be appointed to
hear the challenge. N.C. GEN. STAT. §§ 163-127.1(3), 163-127.2(b), 163-127.3(2).
21. The burden for establishing "reasonable suspicion" is low. For example,
the most recent successful challenge was instituted in part by a challenger who
had no evidence whatsoever of the candidate's alleged disqualifications and, in fact,
admitted that she hoped to be proven wrong during the hearing. Transcript of
Record at 72-73, In re Bonapart, N.C. State Bd. of Elections (Jan. 21, 2020) (order).
In another challenge that was successful at the panel level, the challenger brought
a single piece of evidence that was rejected, but correctly pointed out that "as the
6
ordinance says, I just have to bring suspicion. So that's what I've brought."
Transcript of Record at 55, In re Penland, N.C. State Bd. of Election (Apr. 4, 2018)
(order overturning panel decision on unrelated procedural grounds).
22. The panel "shall ... [a]llow for depositions prior to the hearings, if
requested by the challenger or candidate before the time of the hearing is
designated and announced," N.C. GEN. STAT.§ 163-127.4(a)(2), and "[i]ssue
subpoenas for witnesses or documents, or both, upon requests of the parties or
upon its own motion," id. § 163-127.4(a)(3). "The parties shall be allowed to issue
subpoenas for witnesses or documents, or both, including a subpoena of the
candidate." Id. § 163-127.4(c)(l). The panel itself may issue subpoenas if any two
members or the chair requests them. Id.
23. During the panel hearing, "[t]he burden of proof shall be upon the
candidate, who must show by a preponderance of the evidence of the record as a
whole that he or she is qualified to be a candidate for the office." Id. § 163-127.5(a).
24. The panel may hear evidence in the form of affidavits or witnesses;
witnesses must testify under oath. Id.§ 163-127.4(c)(l). The panel may receive
evidence "from any person with information concerning the subject of the
challenge," consistent with the state's rules of evidence. Id. at§ 163-127.4(c)(2).
FACTUAL BACKGROUND
25. Challengers have reasonable suspicion and belief in the following facts,
based on public reports and publicly available evidence.
7
26. In the days leading up to his swearing-in on January 3, 2021,
Representative Cawthorn repeatedly claimed that the 2020 election was "stolen"
and marred by massive voter fraud. 3
27. These statements were made in support of a larger movement, often
using the slogan "Stop the Steal," that advances and promotes the false narrative
that Donald Trump won the 2020 election. Beginning in November 2020, various
persons associated with the movement attempted to block the certification of
President-elect Biden's victory with dozens of lawsuits. None succeeded, and all
were found to be baseless. 4
28. After litigation failed, some within this larger movement accepted that
they had exhausted their legal options for challenging the results of the
presidential election. 5
The Unconstitutional Scheme to Overturn the 2020 Election Results
29. Others, however, turned to extralegal plans. They formulated an
unconstitutional scheme to subvert the constitutional process of counting the
electoral votes in Congress, preventing President-elect Biden from being sworn in
3 Joel Burgess, As Eiden transition progresses, Cawthorn continues to raise money

off resistance, ASHEVILLE CITIZEN-TIMES (Nov. 25, 2020),
https://bit.lv/CawthorneFundraising: Madison Cawthorn (@CawthornforNC),
TWITTER (Dec. 31, 2020, 3:21 p.m.), https://bit.ly/CawthorneTweetDec31.
4 Jacob Shamisian & Sonam Sheth, Trump and his allies filed more than 40
lawsuits challenging the 2020 election results. All of them failed, BUSINESS INSIDER
(Feb. 22, 2021), https://bit.ly/3m2YfEf.
5 Colin Dwyer, After Supreme Court Defeat, Trump's Backers In Congress Are Quiet
On What Comes Next, NPR (Dec. 12, 2020), https://n.pr/32ybK7f; Rep. Bruce
Westerman (@RepWesterman), TwITTER (Dec. 11, 2020, 8:49 PM),
https://bit.ly/3eFkZ7S.
8
as President. Leaders of this scheme-including then-President Trump, his Chief
of Staff Mark Meadows, certain Members of Congress, and others outside
government-focused on January 6, the day that Congress counts the presidential
electors' votes, as an opportunity to prevent Congress from certifying President-
elect Biden's victory. 6
30. Under the provisions of the Twelfth Amendment to the U.S.
Constitution and the Electoral Count Act, 3 U.S.C. §§ 15 et seq., the votes of
presidential electors are officially counted as follows. At 1:00 p.m. on January 6 of
the year following a presidential election, the U.S. Senate and the U.S. House of
Representatives meet jointly in the House Chamber, with the Vice President of the
United States (in his capacity as President of the Senate) presiding. Beginning
with Alabama, and proceeding alphabetically, the Vice President opens each state's
certificate of the votes of its electors, and calls for objections, if any. Any objection
must be filed by at least one Senator and at least one Member of the House. These
objections are then voted upon separately by the House and Senate. 7
31. The Electoral Count Act provides that, if a state has submitted only
one return of electoral votes, and if the electoral votes were "regularly given by
electors whose appointment has been lawfully certified," then Congress cannot
reject those electoral votes. 8
6 What Happened on Jan. 6, WASH. POST (Oct. 31, 2021), =

h -=
tt=.:.:....:....:.:.=.,;="-"'-"==-===,,.....
7 3 U.S.C. § 15; U.S. CONST. amend. XII.
s 3 U.S.C. § 15.
9
32. The Electoral Count Act provides two scenarios in which, theoretically,
Congress can reject electoral votes. First, "the two Houses concurrently" may reject
one or more electoral votes from a state when both Houses "agree that such vote or
votes have not been so regularly given by electors whose appointment has been so
certified." Second, if a state submits multiple conflicting returns of its electoral
votes, the Act contains procedures for determining which return prevails. 9
33. After the 2020 election, no lawful procedure under the Electoral Count
Act could prevent the counting of electoral votes from the states where President-
elect Biden had won the election. None of those states had submitted multiple
competing electoral tallies to Congress. And it was generally understood that there
were insufficient votes in the U.S. House of Representatives to reject as not
"regularly given" the electoral votes from any state, let alone to reject enough
electoral votes to change the outcome to anything other than a Biden victory .10
34. Since no lawful procedure under the Electoral Count Act could prevent
the counting of electoral votes from the states where President-elect Biden had won
the election, leaders of the scheme to subvert the counting of the votes developed
stratagems by which Vice President Pence would refuse to recognize the votes of
electors from certain states that Trump had lost, thus leading to a Trump "victory"
9Id.
10Joseph Choi, Pelosi sets up call on election challenge: 'No situation matches
Trump presidency,' THE HILL (Jan. 3, 2021), https://bit.lv/32F5CtP.
10
in Congress. 11 However, these plans relied on cooperation from sympathetic
members of Congress and, crucially, Vice President Pence. The plans centered on
Pence abusing the Vice President's ceremonial duty to "open all the certificates" of
state electoral votes as a pretext to unilaterally reject votes.1 2
35. Key leaders and participants in the larger scheme developed plans to
pressure or intimidate Congress and Pence into cooperating-and, if that failed, to
obstruct the electoral count certification. 13
36. A key participant in this scheme was Mark Meadows, then-President
Trump's Chief of Staff. Before becoming Chief of Staff, Meadows had served as the
U.S. Representative for North Carolina's 11th Congressional District (the seat
Cawthorn now occupies) from 2013 to 2020. During this time, Cawthorn forged or
strengthened connections with Meadows. Cawthorn was nominated by Meadows to
11 What Happened on Jan. 6, WASH. POST (Oct. 31, 2021), https://wapo.st/3eSdf2y:

READ: Trump lawyer's full memo on plan for Pence to overturn the election, CNN
(Sept. 21, 2021), https://cnn.it/3gldg4p.
12 U.S. CONST. amend. XII.
13 See, e.g., Trump pressures Pence to throw out election results - even though he
can't, POLITICO (Jan. 5, 2021), https://politi.co/3961iTx; READ: Trump lawyer's full

memo on plan for Pence to overturn the election, CNN (Sept. 21, 2001),
https://cnn.it/3gldg4p; Ahead of Jan. 6, Willard hotel in downtown D.C. was a
Trump team 'command center' for effort to deny Biden the presidency, WASH. POST
(Oct. 23, 2021), https://wapo.st/3pOUPpL; ~ roadmap for a coup': inside Trump's
plot to steal the presidency, THE GUARDIAN (Oct. 30, 2021), https://bit.ly/31g0MjJ;
United States v. Greene, No. 21-CR-52, Statement of Offense, ,r,r 29-31 (D.D.C. Dec.
22, 2021), https://www.justice. gov/usao-dc/press-release/file/1458266/download; see
also infra note 22.
11
the Naval Academy in 2014 14 and worked as a staffer in Meadows' North Carolina
office in 2015 and 2016. 15
37. Meadows was intimately involved in multiple aspects of the effort to
overturn the presidential election results, including efforts to pressure state
officials to overturn election results in states Eiden had won; promoting plans for
Pence to unilaterally reject electoral votes; and communicating with organizers of
January 6 events in the days leading up to January 6 and as the attack unfolded. 16
38. To further their scheme to overturn the presidential election results, in
December 2020 and January 2021, organizers planned a "Save America"
demonstration in Washington, D.C. on January 6 to coincide with, and seek to
block, the certification of electoral votes. At this demonstration, they planned to
push false claims of massive voter fraud and to pressure then-Vice President Pence
to refuse to count slates of electors from states with close contests. 17
39. The organizers of the demonstration were in close contact with several
Members of Congress or their staff during this time regarding the details of the
14 Meadows congratulates Western North Carolina academy nominees, ASHEVILLE

CITIZEN-TIMES (Dec. 22, 2013), https://bit.ly/3eOPBnL.
15 Michael Kranish, The making of Madison Cawthorn: How falsehoods helped
propel the career of a new pro-Trump star of the far right, WASH. POST (Feb. 27,
2021), htt s://wa o.st/3sUewvk.
16 H.R. REP. No. 117-216, at 6-12 (2021),
https://www.congress. gov/117/crpt/hrpt216/CRPT-l17hrpt216.pdf.
17 tt,'hat Happened on Jan. 6, WASH. POST (Oct. 31, 2021), https://wapo.st/3eSdf2y;
see also supra note 13.
12
demonstration, including Representative Cawthorn or his staff. 18 Those same
organizers were also in touch with White House staff about the demonstration,
including Meadows.19
40. Organizers' plans for January 6 also included a march on the U.S.
Capitol while Congress was counting electoral votes. 20
41. On December 19, 2020, then-President Trump endorsed the
demonstration, claiming it would be "wild." 21 This was widely understood to be a
coded call for violence by Trump supporters. On social media, they openly called for
weapons to be carried into the District of Columbia, for law enforcement to be
murdered if they interfered, and for supporters to storm the Capitol to prevent the
certification of President-elect Biden' s victory. 22
42. On December 21, 2020, Representative-elect Cawthorn encouraged
supporters to "call your congressman and feel free-you can lightly threaten them
18 Hunter Walker, Jan. 6 Protest Organizers Say They Participated in 'Dozens' of

Planning Meetings With Members of Congress and lVhite House Staff, ROLLING
STONE (Oct. 24, 2021), https://bit.lv/3HB2Nc4.
is Id.
20 lVhat Happened on Jan. 6, WASH. POST (Oct. 31, 2021), =h=t t=""-'--'-a....=.l.='-=--"-==-= =---
21 Id.
22 Brandy Zadrozny & Ben Collins, Violent threats ripple through far-right internet
forums ahead of protest, NBC NEWS (Jan. 5, 2021),
https://www.nbcnews.com/tech/internet/vio.lent-threats-ripple-through-far-right-
internet-forums-ahead-protest-n1252923; see also Dan Barry & Sheera Frenkel, 'Be
There. Will Be Wild!:· Trump All but Circled the Date, N.Y. TIMES (Jan. 6, 2021),
https://www.nytimes.com/2021/01/06/us/politics/capitol-mob-trump-supporters.html;
Ryan Goodman & Justin Hendrix, The Absence of 'The Donald," JUST SECURITY
(Dec. 6, 2021), https://bit.ly/3sRenLY.
13
... Say: 'If you don't support election integrity, I'm coming after you. Madison
Cawthorn's coming after you. Everybody's coming after you."' 23
43. On December 31, 2020, Cawthorn announced he would oppose the
certification of Biden's victory on the basis that the 2020 election was marred by
fraud and that state laws were not "followed"; he planned to object to results from
Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, and Nevada. 24
44. On January 3, 2021, pursuant to Article VI of the U.S. Constitution,
Cawthorn swore an oath of office to uphold and protect the Constitution.
45. On that same day, it was reported that Trump and his associates in
the movement to overturn the 2020 election had begun to use extralegal and
unlawful tactics, as Trump and Meadows attempted to intimidate Georgia
Secretary of State Raffensperger into fabricating votes and declaring Trump the
winner of Georgia's presidential election. 25
46. On January 4, 2021, Representative Cawthorn promoted the January
6 demonstration, tweeting, "January 6th is fast approaching, the future of this
Republic hinges on the actions of a solitary few. Get ready, the fate of a nation
23 Turning Point, Live! SAS 2020 Day 3! Madison Cawthorn, Allie Stuckey, and
More!, FACEBOOK (Dec. 21, 2020) (at 3:44:00),
https://bit.ly/DecemberTurningPointVideo.
24 Madison Cawthorn (@CawthornforNC), TWITTER (Dec. 31, 2020, 3:21 p.m.),
https://bit.ly/CawthorneTweetDec31.
25 Michael D. Shear & Stephanie Saul, Trump, in Taped Call, Pressured Georgia
Official to 'Find' Votes to Overturn Election, N.Y. TIMES (Jan. 3, 2021),

https://nyti.ms/3mUVQef.
14
rests on our shoulders, yours and mine. Let's show Washington that our backbones
are made of steel and titanium. It's time to fight." 26
47. On January 5, 2021, Pence informed Trump that he did not have the
authority to unilaterally reject electoral votes and consequently would not do so.
This was widely and publicly reported that same day. 27
The Events of January 6, 2021
48. On the morning of January 6, Representative Cawthorn spoke at the
demonstration, remarking that "this crowd has some fight" and "[t]he Democrats,
with all the fraud they have done this election, the Republicans, hiding and not
fighting, they are trying to silence your voice." 28
49. Other speakers included Trump's lawyer, Rudy Giuliani, who called for
"trial by combat," 29 and Rep. Mo Brooks of Alabama, who urged the crowd to "start
taking down names and kicking ass" and be prepared to sacrifice their "blood" and
"lives" and "do what it takes to fight for America" by "carry[ing] the message to
Capitol Hill," since "the fight begins today." 30
26 Madison Cawthorn (@CawthornforNC), TWITTER (Jan. 4, 2021, 5:57 p.m.),

https://bit.ly/CawthornJan4Tweet.
27 Kaitlan Collins & Jim Acosta, Pence informed Trump that he can't block Biden's
win, CNN (Jan. 5, 2021), https://cnn.it/3FH4gx9.

28 Madison Cawthorn (@CawthornforNC), TWITTER (Jan. 6, 2021, 11:02 a.m.),
https://bit.ly/CawthronJan6Tweetl; Rally on Electoral College Vote Certification, C-

SPAN (Jan. 6, 2021) (2:10 mark), https://www.c-span.org/video/?507744-1/rally-
electoral-colle ge-vote-certification; Charles Duncan, N.C. Rep. Cawthorn Sticks by
D.C. Rally Speech, Loses Backing of Key Supporter, SPECTRUM NEWS 1 (Jan. 12,
2021), https://bit.ly/CawthornJ an6SpeechArticle.
29 Wash. Post, Trump, Republicans incite crowd before mob storms Capitol,
YouTUBE (Jan. 6, 2021), https://youtu.be/mh3cbd7niTQ.

30 The Hill, Mo Brooks gives FIERY speech against anti-Trump Republicans,
socialists, YouTUBE (Jan. 6, 2021), https://youtu.be/ZKHwV6sdrMk.
15
50. Around 12:00 pm, then-President Trump began speaking about how
"we will stop the steal." 31 Seven minutes into his speech, the crowd was chanting
"Fight for Trump!". About 16 minutes into his speech, he said, "[a]fter this, we're
going to walk down and I'll be there with you. We're going to walk down. We're
going to walk down any one you want, but I think right here. We're going walk
down to the Capitol, and we're going to cheer on our brave senators, and
congressmen and women. We're probably not going to be cheering so much for some
of them because you'll never take back our country with weakness. You have to
show strength, and you have to be strong." 32 At about this point, 10,000-15,000
demonstrators began the roughly 30-minute march to the Capitol, where they
joined a crowd of 300 members of the violent extremist group "Proud Boys." 33
51. Around 1:00 p.m.-just as Congress had begun the process of jointly
counting the electoral votes-then-President Trump ordered the remaining crowd
to "walk down Pennsylvania Avenue ... we are going to the Capitol." 34 At around
that time, Trump supporters attacked police protecting the barricades surrounding
the Capitol. 35 As Trump ended his speech, a large portion of the crowd began their
31 Donald Trump Speech "Save America" Rally Transcript January 6, REV (Jan. 6,
2021), https://bit.ly/3GheZid; Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part
Of Impeachment Trial, NPR (Feb. 10, 2021), https://n. pr/3G 1K2ON.
32 Id.
33 Martha Mendoza & Juliet Linderman, Officers maced, trampled: Docs expose
depth of Jan. 6 chaos, AP NEWS (Mar. 10, 2021), https://bit.ly/3F2Hi26.
34 What Happened on Jan. 6, WASH. POST (Oct. 31, 2021), https://wapo.st/3eSdf2y.
35 Id.
16
30-minute march to the Capitol. 36 By 1:30 p.m., law enforcement retreated as
insurrectionists scaled the walls of the Capitol. Many were armed with weapons,
pepper spray, and tasers. Some wore full body armor; others carried homemade
shields. Many used flagpoles, signposts, or other weapons to attack police officers
defending the Capitol. 37
52. Because certain Members of Congress (including Cawthorn) had filed
objections to Arizona's slate of electors, by this time the joint counting session had
been suspended and the House and Senate were debating the objections
separately. 38 At 1:31 p.m. Representative Cawthorn tweeted, "I'm fighting a battle
for our Constitution on the house floor with other patriots. The battle is on the
house floor, not in the streets of D.C." 39
53. By 2:00 p.m., the Capitol had been breached by insurrectionists,
smashing through first-floor windows. Over the next two hours, hundreds of
insurrectionists stormed the Capitol, attacking police with weapons and
pyrotechnics. One police officer was crushed against a door, screaming in agony as
the crowd chanted "Heave, ho!" 40 An attacker ripped off the officer's gas mask, beat
36 Kat Lonsdorft et al., A timeline of how the Jan. 6 attack unfolded- including
who said what and when, NPR (Jan. 5, 2022), https://n.pr/3ztHpmo.
3s Id.
39 Madison Cawthorn (@CawthornforNC), TWITTER (Jan. 6, 2021, 1:31 p.m.),
https://bit.ly/CawthornJ an6Tweet.
°
4 Kelsie Smith & Travis Caldwell, Disturbing video shows officer crushed against
door by mob storming the Capitol, CNN (Jan. 9, 2021), https://cnn.it/3eAmdSc.
17
his head against the door, took his baton, and hit his head with it. 41 Another officer
was pulled into a crowd, beaten and repeatedly Tased by insurrectionists. 42
54. The insurrectionists demanded the arrest or murder of various other
elected officials who refused to participate in their attempted coup. 43 They chanted
"hang Mike Pence" and threatened Speaker Pelosi. 44 They taunted a Black police
officer with racial slurs for pointing out that overturning the election would deprive
him of his vote. 45 Confederate flags and symbols of white supremacist movements
were widespread. 46
55. At 2:13 p.m., Vice President Pence was removed by the Secret Service;
the House adjourned at 2:20 p.m. 47 The insurrectionists had successfully
obstructed Congress from certifying the votes, temporarily blocking the peaceful
transition of power from one presidential administration to the next.
56. At 2:44 p.m., insurrectionists attempted to force their way into the
Speaker's Lobby (adjacent to the House Chamber) as lightly armed security guards
41 Clare Hymes & Cassidy McDonald, Capitol riot suspect accused of assaulting cop
and burying officer's badge in his backyard, CBS NEWS (Mar. 13, 2021),
https://cbsn. ws/3eFAaxS.
42 Michael Kaplan & Cassidy McDonald, At least 17 police officers remain out of
work with injuries from the Capitol attack, CBS NEWS (June 4, 2021),
https://cbsn. ws/3eyXZr8.
44 H.R. REP. No. 117-2, at 16, 12-13 (2021),

https://www. govinfo. gov/app/details/CRPT-117hrpt2/CRPT-l17hrpt2.
46 Id.; STAFF OF S. COMM. ON RULES & ADMIN., 117TH CONG., A REVIEW OF THE
SECURITY, PLANNING, AND RESPONSE FAILURES ON JANUARY 6, at 28 (June 1, 2021),

https://www.rules.senate. gov/download/hsgac-rules-jan-6-report.
18
tried to hold the door long enough to evacuate Members of Congress and others. 48
Senate staffers took the electoral college certificates with them when they were
evacuated, ensuring they did not fall into the hands of the insurrectionists. 49
57. Shortly after, the House Chamber and Senate Chamber fell.
Insurrectionists, some carrying zip ties and tactical equipment, overtook the
defenses of the United States government and achieved, through force, effective
control over the seat of the United States Congress. 50 After 3:00 p.m., DHS, ATF,
and FBI agents, and police from Virginia and Maryland, joined Capitol Police to
help regain control of the Capitol. 51 Around 4:30 p.m., insurrectionists attacked
officers guarding the Capitol, beating them with improvised weapons, spraying
them with mace, and beating one so badly he required staples. 52 Around 5:20 p.m.,
the D.C. National Guard began arriving. 53 By 6:00 p.m., the insurrectionists had
been removed from the Capitol, though some committed sporadic acts of violence
through the night. 54
58. Vice President Pence was not able to reconvene Congress until 8:06
p.m., nearly six hours after the process had been obstructed. 55 Around 9 p.m.,
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53 STAFF OF S. COMM. ON RULES & ADMIN., 117TH CONG., A REVIEW OF THE SECURITY,
PLANNING, AND RESPONSE FAILURES ON JANUARY 6, at 26 (June 1, 2021),

https://www.rules.senate. gov/download/hsgac-rules-jan-6-report.
55 Id.
19
Trump's counsel John Eastman argued to Pence's counsel via email that Pence
should refuse to certify Biden's victory by not counting certain states. 56 Pence's
counsel ignored it. Congress was required under the Electoral Count Act to debate
the objections filed by Senators and Members of Congress (including Cawthorn) to
electoral results from Arizona and Pennsylvania. Despite six Senators and 121
Representatives (including Cawthorn) voting to reject Arizona's electoral results, 57
and seven Senators and 138 Representatives (including Cawthorn) voting to reject
Pennsylvania's electoral results, 58 Biden's victory was ultimately certified at 3:14
a.m., January 7.59
59. In total, five people died 60 and over 150 police officers suffered injuries,
including broken bones, lacerations, and chemical burns. 61 Four Capitol Police
officers on-duty during January 6 have since died by suicide. 62
56 Id.
57 167 Cong. Rec. H77 (daily ed. Jan. 6, 2021), http://bit.ly/Jan6CongRec.
58 Id. at H98.
59 What Happened on Jan. 6, WASH. POST (Oct. 31, 2021), https://wapo.st/3eSdf2y :
167 Cong. Rec. H114-15 (daily ed. Jan. 6, 2021), http://bit.ly/Jan6CongRec.
60 Jack Healy, These Are the 5 People Who Died in the Capitol Riot, N.Y. TIMES (Jan.
11, 2021), https://nyti.ms/3pTyN5g.
61 Michael Kaplan & Cassidy McDonald, At least 17 police officers remain out of
work with injuries from the Capitol attack, CBS NEWS (June 4, 2021),
https://cbsn.ws/3eyXZr8; Michael S. Schmidt & Luke Broadwater, Officers' Injuries,
Including Concussions, Show Scope of Violence at Capitol Riot, N.Y. TIMES (Feb. 11,
2021), https://nyti.ms/3eN31k2 ..
62 Luke Broadwater & Shaila Dewan, Congress Honors Officers Who Responded to
Jan. 6 Riot, N.Y. TIMES (Aug. 3, 2021), htt s://n ti.ms/3EURwl
20
Cawthorn's Statements Since the Insurrection
60. During the assault on the Capitol, Representative Cawthorn called a
radio show hosted by Charlie Kirk, a prominent public figure, and deflected blame
onto Democratic and "antifa" infiltrators for the violence. 63
61. In a January 7, 2021 interview, Representative Cawthorn admitted
that the people who stormed the Capitol were likely people who would have voted
for him. But he claimed that he had nothing to do with the attack, and that he was
not frightened because he was armed.6 4
62. On February 5, 2021, he said he did not regret speaking at the
demonstration. 65
63. On August 29, 2021, Cawthorn said he sympathized with
insurrectionists as "political hostages" and "political prisoners," and suggested
that, if he knew where they were incarcerated, he would like to "bust them out." 66
When asked when supporters would be "called back to Washington," he replied,
"[w]e are actively working on that one." 67 He also advocated for additional political
violence, saying that "[t]he second amendment was not written so that we can go
hunting or shoot sporting clays. The second amendment was written so that we can
63 Chaos at the Capitol, THE CHARLIE KIRK SHOW (Jan. 6, 2021),

https://bit.ly/KirkPodcast.
64 Cory Vaillancourt, Cawthorn: mob that breached capitol 'disgusting and pathetic',
SMOKY MOUNTAIN NEWS (Jan. 7, 2021), https://bit.ly/CawthornJan7Interview.
65 Carlos Watson, Does Rep. Madison Cawthorn Regret His Speech Before the U.S.
Capitol Riots? YouTUBE (Feb. 5, 2021), https://bit.ly/CawthornFeb5Interview.
66 Madison Cawthorn Macon County Republican Party Appearance 8-29-2021,
YouTUBE (Aug. 31, 2021), https://youtu.be/2RtsGikgAqA.
67 Id.
21
fight against tyranny"; "if our election systems continue to be rigged, and continue
to be stolen, then it's going to lead to one place, and it's bloodshed"; "[w]hen
tyranny becomes law, rebellion becomes your duty," and that, with respect to his
political opponents, "we all need to be storing up some ammunition." 68
64. On or about August 30, 2021, the U.S. House of Representatives'
bipartisan Select Committee to Investigate the January 6th Attack on the U.S.
Capitol instructed 35 private-sector entities, including telecommunications, email,
and social media companies, to preserve records of 11 Members of Congress,
including Representative Cawthorn. 69
65. On November 19, 2021, Representative Cawthorn told his supporters
to be "armed, dangerous, and moral."70
66. On December 7, 2021, Representative Cawthorn filed for candidacy for
the House of Representatives in the 13th District for North Carolina.
67. Representative Cawthorn's occasional criticisms of the Capitol
attackers since January 6, 2021 71 do not substantially alter his overall record of
support for the insurrection; rather, they suggest a post hoc effort to distance
68 Jd.
69 Rebecca Shabad et al., Jan. 6 committee to ask phone companies for Republican
lawmakers' records, NBC NEWS (Aug. 30, 2021), https://nbcnews.to/3pHntJz.
70 The Lincoln Project (@ProjectLincoln), TWITTER (Nov. 19, 2021, 1:36 p.m.),
https://bit.lv/CawthornNov19.
71 For example, he once described the attackers as "weak-minded men and women
who are unable to check their worst impulses and had very little self-control."
Carlos Watson, Does Rep. Madison Cawthorn Regret His Speech Before the U.S.
Capitol Riots? YouTUBE (Feb. 5, 2021), https://youtu.be/czJXV7Tz8u4.
22
himself from his past support for and, as alleged herein, engagement in the
insurrection, even as he continues to this day to profess support for its goals.
INELIGIBILITY ANALYSIS
The State Board of Elections and its appointed panel must hear
candidate challenges based on Section Three, such hearings are
consistent with precedent, and North Carolina has a duty to
prevent unqualified congressional candidates from
appearing on the ballot.
68. In general, states can apply ballot eligibility procedures to candidates
for federal office who do not meet the criteria established by the U.S. Constitution.
As then-Judge (now U.S. Supreme Court Justice) Gorsuch held, a state's
"legitimate interest in protecting the integrity and practical functioning of the
political process permits it to exclude from the ballot candidates who are
constitutionally prohibited from assuming office." Hassan v. Colorado, 495 F. App'x
947,948 (10th Cir. 2012); accord Peace & Freedom Party v. Bowen, 750 F.3d 1061
(9th Cir. 2014); see also Burdick v. Takushi, 504 U.S. 428, 441 (1992) ("the right to
vote is the right to participate in an electoral process that is necessarily structured
to maintain the integrity of the democratic system").
69. The candidate challenge process in North Carolina is fully competent
to adjudicate questions of ineligibility under the Disqualification Clause of the
Fourteenth Amendment. First, a process for disqualifying candidates ineligible
under Section Three was an express condition of the federal statute that
23
readmitted North Carolina to the Union after the Civil War. 72 Second, as discussed
above, the challenge process provides ample process to the challenged candidate,
and allows the candidate to present evidence, call witnesses, testify, and appeal
any adverse decisions to the North Carolina Court of Appeals and beyond. 73
70. North Carolina law specifically authorizes challenges to candidacy on
the grounds that "the candidate does not meet the constitutional ... qualifications
for the office." N.C. GEN. STAT.§ 163-127.2(b). For example, the general counsel for
the State Board of Elections has confirmed that a candidate who is constitutionally
ineligible for the presidency "will not qualify as a Presidential Candidate in the
State of North Carolina." Letter from Don Wright, General Counsel, N.C. State Bd.
of Elections, to Abdul K. Hassan, July 22, 2011.
71. North Carolina has a history of using state law processes to exclude
candidates who are disqualified by Section Three of the Fourteenth Amendment.
See Worthy, 63 N.C. at 204-05; In re Tate, 63 N.C. 308 (1869); see also 1868 N.C.
Pub. L. ch. 1, § 8 ("no person prohibited from holding office by section 3 of the
Amendment to the Constitution of the United States, known as Article XIV, shall
qualify under this act or hold office in this State"). Furthermore, these processes
72 40 Cong. Ch. 70, 15 Stat. 73 (1868) ("no person prohibited from holding office
under the United States ... by section three of the proposed amendment to the
Constitution of the United States, known as article fourteen, shall be deemed
eligible to any office in [any] of said States, unless relieved from disability as
provided by said amendment").
73The North Carolina procedures also satisfy Chief Justice Chase's dictum that
Section Three requires "proceedings, evidence, decisions, and enforcements of
decisions, more or less formal" to determine who is and is not covered. In re Griffin,
11 F. Cas. 7, 26-27 (C.C.D. Va. 1869).
24
have long included initial determinations of qualifications by non-judicial state
officials. See Worthy, 63 N.C. at 200.
72. Once a state has determined a candidate is disqualified under Section
Three, it has a duty to ensure that the unqualified candidate is not listed on the
ballot. Just as North Carolina should exclude an underage candidate from the
primary for a congressional race, it should also exclude one who engaged in an
insurrection against the United States.
73. The fact that the U.S. House of Representatives itself has authority to
exclude Cawthorn, if re-elected, does not deprive the sovereign state of North
Carolina of the power and obligation to protect the integrity of its own ballots. 74
January 6 was an insurrection or rebellion within the meaning of

Section Three of the Fourteenth Amendment.
74. The January 6 attack constituted an "insurrection" or "rebellion" under
75. First, the insurrectionists defied the authority of the United States.
See In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894) (defining
insurrection as an uprising "so formidable as for the time being to defy the
authority of the United States"); Insurrection, WORCESTER'S DICTIONARY (1835)
(leading pre-1868 dictionary defining "insurrection" to mean "[a] seditious rising
74Resolving this issue now, at the primary stage, would ensure that Republican
primary voters may choose a constitutionally eligible candidate in the normal
election schedule, and would prevent the possible need for a special election.
25
against government"); 75 see also Allegheny Cty. v. Gibson, 90 Pa. 397, 417 (1879)
(applying a similar definition); 4 WM. BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND, *81-82 (distinguishing riots from violence against the state). During the
attack, insurrectionists were armed, called for the death of elected officials
(including the Vice President, the Speaker of the House of Representatives, and
other prominent Members of Congress), attacked law enforcement, and forced their
way into the building. Five people died and 150 law enforcement officers were
injured. It took the combined efforts of the Capitol Police, federal agents, state
police, and the National Guard to clear the insurrectionists from the Capitol. 76
76. Second, the insurrectionists' goal was to overthrow the government or
obstruct its core functions. See Pan Am. World Airways, Inc. v. Aetna Cas. & Sur.
Co., 505 F.2d 989, 1005 (2d Cir. 1974) (insurrection requires "an intent to
overthrow a lawfully constituted regime"); Home Ins. Co. of N. Y. v. Davila, 212
75Most legal authority defining "insurrection" pertains to insurrections against any

government. Under Section Three, the violent uprising must be against the United
States, rather than state or local government. See U.S. CONST. amend. XIV,§ 3
(applying to a person who previously swore "to support the Constitution of the
United States" but engaged in insurrection "against the same").
76The original public understanding of "insurrection" may not have required actual
violence. See In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894)
(insurrection does not require "bloodshed," only that the uprising be "so formidable
as for the time being to defy the authority of the United States"). Twentieth-century
cases typically define "insurrection" as requiring violence. See Pan Am. World
Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1017 (2d Cir. 1974) (defining
insurrection to require "a violent uprising"); Home Ins. Co. of N. Y. v. Davila, 212
F.2d 731, 736 (1st Cir. 1954) (similar). As set forth above, the facts of January 6
easily satisfy any such requirement.
26
F.2d 731, 736 (1st Cir. 1954) (insurrectionary action must be "specifically intended
to overthrow the constituted government and to take possession of the inherent
powers thereof'). Even before the attack, the entire point of the demonstration (at
which Cawthorn spoke) was to intimidate Congress and Vice President Pence-in
particular, to intimidate Pence into violating the Twelfth Amendment and the
Electoral Count Act by ignoring the legal electoral votes for Biden. And the
insurrectionists mounted their violent assault on the U.S. Capitol and the
government officials within for the purpose of preventing the Vice President of the
United States and the United States Congress from fulfilling their constitutional
roles in ensuring the peaceful transition of power. As they attacked, the
insurrectionists insisted that elected officials anoint their preferred candidate the
winner--or be murdered.
77. This was an attack on the United States. The importance of counting
the electoral votes in our constitutional system cannot be overstated. It formalizes
a deeper, bedrock norm in our democracy: the peaceful transition of power. The
Electoral Count Act, as well as the Article II and the Twelfth Amendment, lay out
the procedures for counting votes; together with the Twentieth Amendment, they
ensure that transition is orderly and non-violent. They are essential constitutional
functions of the United States government. An attempt to disrupt those
procedures, particularly through violence, is an attack on our country itself.
78. This was no mere riot; it was an attempt to disrupt an essential
constitutional function and illegally prolong Trump's tenure in office. And while an
27
attack on public authority need not be likely to succeed in order to constitute an
insurrection, see Davila, 212 F.2d at 736 ("An insurrection aimed to accomplish the
overthrow of the constituted government is no less an insurrection because the
chances of success are forlorn."), the January 6 insurrectionists' violent seizure of
the House and Senate Chambers and key congressional offices did, in fact, obstruct
and delay this essential constitutional procedure. They very nearly succeeded in
achieving their aim of overturning the results of the 2020 presidential election.
U.S. Representative Peter Meijer of Michigan, a member of Cawthorn's party who
joined the House on the same day as him, has described the attack as "a violent
attempt to interfere with the proceedings of Congress, and specifically the
certification of the Electoral College results." 77 General Mark Milley, Chairman of
the Joint Chiefs of Staff, "believed January 6 was a planned, coordinated,
synchronized attack on the very heart of American democracy, designed to
overthrow the government"; he referred to January 6 as a "coup attempt." 78 If this
violent attack on the political system of the United States in the heart of the
nation's capital is not an insurrection, then nothing is.
79. This analysis of January 6 is consistent with the understanding of
Congress, the U.S. Department of Justice, and federal courts.
77 Death threats, primary challenge followed Rep. Meijer's vote to impeach Trump
after Jan. 6, PBS (Jan. 4, 2022), https://to.pbs.org/3FXcKAi.
78 BOB WOODWARD & ROBERT COSTA, PERIL, xviii (2021).
28
80. On the evening of January 6, after Congress was finally able to
reconvene, Senator Mitch McConnell of Kentucky, the Senate Majority Leader,
described the assault as a "failed insurrection." 79
81. In court filings, the U.S. Department of Justice has characterized the
attack on the Capitol as "an insurrection attempting to violently overthrow the
United States Government." 80 Judge Carl Nichols of the U.S. District Court for the
District of Columbia has described the attack as an "uprising" that "target[ed] a
proceeding prescribed by the Constitution and established to ensure a peaceful
transition ofpower." 81 Bipartisan majorities of the House and Senate voted for
articles of impeachment describing the attack as an "insurrection." 82 And in the
impeachment trial, President Trump's own defense lawyer stated that "the
question before us is not whether there was a violent insurrection of [sic] the
Capitol. On that point, everyone agrees." 83 The Senate voted by unanimous consent
to award a Congressional Gold Medal for Capitol Police officer Eugene Goodman
via a bill that categorized the January 6 attackers as "insurrectionists." 84 Congress
79 Nicholas Fandos et al., Resuming electoral counting, McConnell condemns the

mob assault on the Capitol as a 'failed insurrection', N.Y. TIMES (Jan. 6, 2021),
https ://www .nytimes.com/2021/01/06/us/politics/insurrection.html.
80 United States v. Chansley, No. 21-cr-00003 (D. Ariz. filed Jan. 14, 2021), ECF No.
5, https://bit.ly/3FJ1LdM.
81 United States v. Miller, No. 21-cr-00119 (D.D.C. Dec. 21, 2021), ECF No. 67,
https://bit.ly/318NBmX.
82 167 Cong. Rec. H191 (daily ed. Jan. 13, 2021); 167 Cong. Rec. S733 (daily ed. Feb.
13, 2021).
83 167 Cong. Rec. S729 (daily ed. Feb. 13, 2021), http://bit.ly/EveryoneAgrees.
84 167 Cong. Rec. S694-95 (daily ed. Feb. 12, 2021).
29
separately voted to award Congressional Gold Medals to other Capitol Police, using
the same "insurrectionists" language. 85
82. Recognizing January 6 as an insurrection or rebellion for purposes of
Section Three is also consistent with the intent of the Fourteenth Amendment's
drafters, who worried that the reelection of the pre-war political class in the South
would re-empower those willing to use violence or otherwise reject the results when
their preferred policies were not enacted, or their preferred candidates were not
elected. See, e.g., 69 CONG. GLOBE, 39th Cong., 1st Sess. 2532 (1866) (statement of
Rep. Banks) ("They do not rely on ideas for success. They govern by force. Their
philosophy is force. Their tradition is force.") . .The idea behind Section Three was
that politicians who took an oath to protect the Constitution and then disregarded
the norms of peaceful and lawful political discourse could not be trusted to hold
office-that was true then, and it remains true today.
If Representative Cawthorn helped plan January 6 events with the

intent to incite or aid an insurrection or rebellion or with the
knowledge that an insurrection or rebellion was substantially
likely, he has engaged in an insurrection within the meaning of
83. To "engage" in insurrection or rebellion, one must voluntarily and
knowingly aid the insurrection by providing it with something useful or necessary.
84. The Disqualification Clause does not require that individuals
personally commit acts of violence or open defiance to be considered as having
85 Pub. L. No. 117-32, 135 Stat. 322 (2021).
30
"engaged" in an insurrection. 86 In the leading national case on the standard for
"engaging'' in insurrection under Section Three, the North Carolina Supreme Court
interpreted the word "engage" to mean "[v]oluntarily aiding the rebellion, by
personal service, or by contributions, other than charitable, of any thing that was
useful or necessary" to it. Worthy, 63 N.C. at 203; see also United States v. Powell,
65 N.C. 709 (C.C.D.N.C. 1871) (holding that "engage" merely required "a voluntary
effort to assist the Insurrection ... and to bring it to a successful [from
insurrectionists' perspective] termination").
85. Someone who helps plan a demonstration with the intent, knowledge,
or reason to know that it will result in an insurrection or rebellion has voluntarily
given their "personal service" to the insurrection by providing something
"necessary" to the insurrection: an assembly point. Similarly, someone who does
not plan the insurrection or rebellion itself, but plans an inciting event and knows
that an insurrection is substantially likely to result, has also "engaged" in an
insurrection. They have created a chaotic situation that makes it more likely for
the insurrection to come to "a successful [on its own terms] termination," and by
knowing that an insurrection is substantially likely, they have given that aid
voluntarily.
86. Here, there is reliable reporting that Representative Cawthorn, who
was intimately involved in the plans inside the Capitol to reject the electoral votes
86For example, Confederate President Jefferson Davis did not personally engage in
violence during the Civil War.
31
of Arizona and Pennsylvania, and spoke at the "Save America" demonstration, was
also involved with, at minimum, the planning of events that led to the insurrection.
87. Supporters of the movement to prevent President-elect Biden's victory
from being certified in Congress, with whom Representative Cawthorn continues to
associate, made it clear beforehand that they understood the demonstration as a
call to forcibly prevent the certification of Biden and install Trump as president for
another four years. At no point before the demonstration did Representative
Cawthorn insist on peaceful protest. 87 Instead, he promoted the demonstration by
encouraging his supporters that it was "time to fight" and show their "backbone,"
and spoke in an equally incendiary fashion during the demonstration.
88. Representative Cawthorn has advocated for political violence both
before and after the insurrection. He urged his supporters to "lightly threaten"
Members of Congress and has insisted that the necessary and justifiable outcome
of continued "fraud" is violence.
89. Although he couches his language in American values, his support for
false election fraud claims and references to bloodshed and violent confrontation
demonstrate his public position that violence and intimidation is justified in
response to a peaceful, orderly election if his candidate of choice loses. His
occasional professions of denial or disdain for the foot soldiers who stormed the
87Nor are Challengers aware of any affirmative action by Cawthorn to abandon,

defeat, or disavow the insurrection-certainly not before the violence that he knew
or should have known was substantially likely.
32
Capitol cannot conceal the fact that he encouraged, and upon reasonable suspicion
helped aid, the insurrection.
CONCLUSION
90. Challengers have reasonable suspicion that Representative Cawthorn
was involved in planning efforts to intimidate Congress and the Vice President into
rejecting valid electoral votes and subvert the essential constitutional function of
an orderly and peaceful transition of power. Challengers have reasonable suspicion
that Cawthorn was involved in either planning the attack on January 6, or
alternatively the planning of the pre-attack demonstration and/or march on the
Capitol with the advance knowledge that it was substantially likely to lead to the
attack, and otherwise voluntarily aided the insurrection after taking an oath, as a
member of Congress to support the Constitution, disqualifying him from federal
office under the Disqualification Clause of Section Three of the Fourteenth
Amendment; and, therefore, that he "does not meet the constitutional ...
qualifications for the office" he seeks. N.C. GEN. STAT.§ 163-127.2(b).
REQUESTED RELIEF
WHEREFORE, the Challengers respectfully request that:
1. The State Board of Elections immediately appoint a multi-county board to
hear the challenge.
2. The Challengers be authorized to depose Representative Cawthorn before the
hearing.
33
3. The Challengers be authorized to issue subpoenas to Representative
Cawthorn and to other persons, within and outside North Carolina, of
documents and tangible things that may provide relevant evidence.
John . Wallace Ronald Fein*

State ar No. 737 4 John C. Bonifaz*
Lauren T. Noyes Ben Clements*
State Bar No. 28130 Benjamin Horton*
Post Office Box 12065 Free Speech For People
Raleigh, North Carolina 27605 1320 Centre St. #405
(919) 782-9322 - telephone Newton, l\.1A 02459
(919) 782-8133 - facsimile (617) 244-0234
jrwallace@wallacenordan.com rfein@freespeechforpeople.org
ltnoyes@wallacenordan.com
Attorneys for Challengers
* Motions for pro hac vice admission

Robert F. Orr forthcoming.
State Bar No. 6798
3434 Edwards Mill Road
Suite 112-372
Raleigh, NC 27612
919-608-5335
orr@rforrlaw.com
Of counsel
James G. Exum, Jr.

State Bar No. 1392
6 Gleneagle Ct.
Greensboro, NC 27 408
336-554-1140
jimxzoom@gmail.com
34
Exhibit C
to
Memorandum in Support of Motion for
Preliminary Injunction
Stay Order


Memorandum in Support of Cawthorn Move For Injunction

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UNITED STATES DISTRICT COURT

OF THE EASTERN DISTRICT OF NORTH CAROLINA

MADISON CAWTHORN, an individual,

MR. DAMON CIRCOSTA, in his official capacity

Plaintiff’s Memorandum in Support of Plaintiff’s Motion for Preliminary

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 1 of 36

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 2 of 36

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 3 of 36

Alabama v. White, 496 U.S. 325 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

City of Houston v. Hill, 482 U.S. 451, (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Clements v. Fashing, 457 U.S. 957 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Hackford v. Utah, 827 F. App’x 808 (10th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hall v. Toreros, II, Inc., 363 N.C. 114 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Herrera-Martinez v. Garland, 22 F.4th 173 (4th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Lowe v. Spears, 258 F. App’x 568 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

McFarland v. Am. Sugar Ref. Co., 241 U.S. 79 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 4 of 36

PDX N., Inc. v. Asaro-Angelo, 142 S. Ct. 69 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ross v. Meese, 818 F.2d 1132 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Roudebush v. Hartke, 405 U.S. 15 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Speiser v. Randall, 357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

State ex rel. Chavez v. Evans, 446 P.2d 445 (N.M. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

W. & A.R.R. v. Henderson, 279 U.S. 639 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14

Waters v. Churchill, 511 U.S. 661 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Younger v. Harris, 401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitutions, Statutes, and Rules

N.C. Const. art. IV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

N.C. Const. art. IV, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

N.C.G.S. § 163-127.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13, 20

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 5 of 36

N.C.G.S. § 163-22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 13, 15, 26

U.S. Const. amend. XIV, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 21

U.S. Const. art. I, § 5, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Black's Law Dictionary (11th ed. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 6 of 36

district on December 7, 2021.

constitutional challenges to the North Carolina Challenge Statute itself.

The Challenge Statute’s provision allows a Challenge to Rep. Cawthorn’s “qualifications” to

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 7 of 36

would be violated if arrested based upon only a reasonable suspicion.

constitutional responsibilities, it violates Article 1, § 5 of the U.S. Constitution.

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 8 of 36

office, including residency. (“Challenge”) N.C.G.S. §§ 163-127.1, 127.2(b); see generally

stated. Id. at (b) (emphasis added).

Pl.’s Mem. in Supp. of

Case 5:22-cv-00050-M Document 9 Filed 02/01/22 Page 9 of 36

for the office.” Id.