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

Pl.’s Mem. in Supp. of

Prelim. Inj. ii

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 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

Pl.’s Mem. in Supp. of

Prelim. Inj. iii

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 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

Pl.’s Mem. in Supp. of

Prelim. Inj. iv

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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

Pl.’s Mem. in Supp. of

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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

Pl.’s Mem. in Supp. of

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

 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

Pl.’s Mem. in Supp. of

Prelim. Inj. 1

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

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

Pl.’s Mem. in Supp. of

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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.

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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

Pl.’s Mem. in Supp. of

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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

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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.

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 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.

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 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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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).

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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

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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

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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.

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 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

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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,

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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

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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.

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 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

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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

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 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

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 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

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