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The 2022 midterm elections are the first of the Biden era. They're also the first since the 2020 census, which means there are new congressional districts. There are U.S. Senate races in the Carolinas as well, along with many state and local races.

As opponents try to disqualify him as an insurrectionist, Madison Cawthorn files a lawsuit

Blue Ridge Public Radio
Madison Cawthorn has filed a lawsuit in federal court to stop a challenge to his eligibility to run for reelection

Newly elected North Carolina Republican U.S. Rep. Madison Cawthorn promoted the Jan. 6, 2021, “Save America” rally in Washington, D.C., on Twitter, saying “the future of the republic hinges on the actions of a solitary few.”

And hours before the attack on the Capitol, Cawthorn spoke at the rally.

“But my friends the Democrats with all the fraud they have done in this election, the Republicans hiding and not fighting … they are trying to silence your voice,” he said.

Months later, during a rally in Franklin, North Carolina, he called the Capitol attackers “political prisoners” and said if elections are stolen, there will be “more bloodshed.”

Those words are now at the heart of an unusual case against Cawthorn. A group of North Carolina voters, along with the group Free Speech for People, is challenging whether Cawthorn is eligible to run for office.

They argue that Cawthorn is an insurrectionist in the same way as Confederates were who took up arms against the United States 160 years ago. They say he violated Section 3 of the 14th Amendment of the U.S. Constitution, which bars people who "engaged in insurrection" from serving.

Ron Fein, legal director of Free Speech for the People, is helping fund the challenge.

“It’s not just that Cawthorn spoke at that pre-attack demonstration — one of two members of Congress who spoke there — alongside other speakers who were demanding trial by combat and talking about sacrificing blood to fight for America,” Fein said. “But we also have reliable reporting that Cawthorn and his team were communicating with the planners ahead of Jan. 6 and helped to plan some of these events.”

Cawthorn this week filed a federal lawsuit to stop the challenge. The North Carolina State Board of Elections is waiting to see how it should proceed.

Eligibility challenges in North Carolina, or any state, usually revolve around simple questions, such as, “Does a candidate live in their district?”

The state’s framework for resolving those run-of-the-mill eligibility challenges will likely be used for the challenge against Cawthorn. And under state law, the burden is on Cawthorn to show he is eligible to run.

Former North Carolina Supreme Court justice Bob Orr — a so-called "never Trump" former Republican — is working on the case. He said there is local precedent, albeit from two centuries ago. A former North Carolina Confederate sheriff was disqualified from serving after the Civil War when the 14th Amendment was invoked.

He said there are three issues:

“Did you take an oath? Yes. Was there an insurrection or rebellion against the constitutional authorities?” Orr asked.

Orr said he believes there was an insurrection. The final issue, he said, is, “Did he provide aid and comfort and engage in this? And we think there is certainly enough evidence on the public record that we know of now and will certainly be looking for additional evidence.”

By additional evidence, Orr means being able to depose Cawthorn under oath to learn about any involvement he may have had with Jan. 6 plotters.

One of Cawthorn’s attorneys, James Bopp Jr., said the Free Speech challenge is a “despicable attempt by the Democrats to undermine democracy.” He said Democrats are trying to get judges and elections boards to pick candidates, not voters.

Bopp said that Cawthorn’s speech is protected.

“The word in section 3 of the 14th Amendment is 'engage,'” he said. “'Engage' connotes conduct, not speech.”

He also said he doesn’t believe the attack was an insurrection. He said the protests and violence in the summer of 2020 over the death of George Floyd were closer to an insurrection than Jan. 6.

“(The Cawthorn challenge) spits in the grave of all those Union soldiers that fought in the Civil War to preserve the Union and free the slaves, who fought a bonafide rebellion and insurrection,” Bopp said.

Fein said it was widely acknowledged after Jan. 6 that the attack was an insurrection. GOP Senate Minority Leader Mitch McConnell called it an insurrection, among others.

“President Trump’s lawyer in his impeachment trial conceded that it was an insurrection,” Fein said.

And he said comparing George Floyd protests to Jan. 6 is disingenuous because the goal was not to intimidate Congress into not certifying an election.

“There are riots and there are lawless events but not every riot is an insurrection,” he said. “In fact, the vast majority of riots never rise to the level of an insurrection.”

Fein said the Cawthorn challenge is just the beginning. He said his group will challenge other members of Congress, and possibly former President Trump.

“If Mr. Trump decides to file for reelection, then we absolutely intend to challenge his candidacy,” Fein said.

Cawthorn currently represents a congressional district in the mountains. But he announced he would switch districts and run in the newly created district that includes Rutherford, Cleveland and Gaston counties and part of Mecklenburg County.

Under North Carolina law, the State Board of Elections will create a special five-member board from the county elections boards in Cawthorn’s district. That special board will have three Democrats and two Republicans.

Depending on what happens with Cawthorn’s lawsuit, that group will decide on Cawthorn’s eligibility. It’s likely the losing side will appeal to the State Board of Elections, which has a Democratic majority.

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Steve Harrison is WFAE's politics and government reporter. Prior to joining WFAE, Steve worked at the Charlotte Observer, where he started on the business desk, then covered politics extensively as the Observer’s lead city government reporter. Steve also spent 10 years with the Miami Herald. His work has appeared in The Washington Post, the Sporting News and Sports Illustrated.