Free Speech For People serves as co-lead counsel for the voters challenging Cawthorn’s eligibility to appear on the 2022 primary ballot in North Carolina.

RICHMOND, VA – North Carolina voters challenging Representative Madison Cawthorn’s eligibility to appear on the 2022 primary ballot filed today an emergency appeal before the U.S. Court of Appeals for the Fourth Circuit. The voters are seeking to reverse a ruling issued last Friday by a federal district judge appointed by Donald Trump, who ordered the North Carolina State Board of Elections not to conduct a statutorily required hearing on the voters’ challenge to the candidacy of Madison Cawthorn under the Fourteenth Amendment’s Insurrectionist Disqualification Clause.

The voters’ challenge, filed before the North Carolina State Board of Elections, alleges that Cawthorn is constitutionally disqualified from public office under the Fourteenth Amendment to the U.S. Constitution based on evidence that he helped facilitate the January 6, 2021 insurrection.  The voters are represented by Free Speech For People, a nonpartisan, non-profit legal advocacy organization with constitutional law expertise, which is serving as co-lead counsel in the matter; Womble Bond Dickinson, a North Carolina law firm serving as co-lead counsel; Wallace & Nordan, a North Carolina law firm specializing in election law; and Robert F. Orr, a former Republican Justice of the North Carolina Supreme Court.  James G. Exum, Jr., a former Chief Justice of the North Carolina Supreme Court, serves as Of Counsel in the matter.

Section Three of the Fourteenth Amendment, known as the Disqualification Clause, provides: “No Person shall be a Senator or Representative in Congress. . . who, having previously taken an oath, as a member of Congress . . . 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.” The purpose of the Disqualification Clause, enacted in the wake of the Civil War, is not to punish the oathbreaker but rather to protect the country. No criminal conviction or prior adjudication is required under the Disqualification Clause, although Cawthorn would be able to seek judicial review of an adverse decision.

Cawthorn filed a lawsuit in federal court to block the state candidacy challenge proceedings. Last Friday, Chief Judge Richard Myers of the U.S. District Court for the Eastern District of North Carolina granted that request, in a ruling announced from the bench without a written opinion. According to the court’s ruling, Congress, in passing an 1872 amnesty law for ex-Confederates, essentially repealed the 14th Amendment, even though the only way to repeal an amendment to the U.S. Constitution is by enacting a new constitutional amendment. Further, Congress had passed the 14th Amendment just six years earlier, and, according to this court ruling, the 1872 amnesty law, by a trick of wording that–although no one noticed it at the time, or in the 150 years since–completely undermined Congress’s careful decision to write the Insurrectionist Disqualification Clause to apply to future insurrections.

“This decision must be reversed by the Court of Appeals for the Fourth Circuit so that the North Carolina state proceedings may move forward,” said Ron Fein, Legal Director of Free Speech For People. “No serious person thinks that the 1872 amnesty for ex-Confederates protects Madison Cawthorn.”

Until the decision is overturned on appeal, the state process is on pause, and Madison Cawthorn is temporarily shielded from answering questions about whether his involvement in January 6 disqualifies him under the Fourteenth Amendment. But today’s filing by the North Carolina voters asks the Court of Appeals to stay the injunction pending resolution of the appeal, enabling the initial stages of the North Carolina State Board’s candidacy challenge process to begin while the court considers the appeal on the merits.

Read the emergency motion for a stay of the preliminary injunction pending appeal here.