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In Legal Twist, Burden of Proof Now on Rep. Cawthorn to Prove He's Not an Insurrectionist

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In an effort to block Republican Rep. Madison Cawthorn of North Carolina from re-election, opponents are dragging out a Reconstruction-era law that forces Cawthorn to prove he has never been part of an insurrection.

The crux of the argument advanced by Free Speech for People, the group that is challenging Cawthorn’s candidacy, is that he is an insurrectionist by virtue of supporting the Capitol protests last Jan. 6 that eventually morphed into the Capitol incursion, according to NPR.

“It’s not just that Cawthorn spoke at that pre-attack demonstration — one of only 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,” Ron Fein, the group’s legal director, 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,” he said.

They claim that Cawthorn’s support for the rally that day violated the 14th Amendment, specifically Section Three, which barred some former Confederates from holding office if they had taken an oath to support the Constitution and then “engaged in insurrection.”

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If the challenge moves forward, the burden of proof falls upon Cawthorn to prove that he was not engaged in an insurrection, because the case would fall under the state’s election law procedures.

Cawthorn, however, has launched a pre-emptive strike in federal court to have the challenge thrown out.

The eligibility ploy is nothing more than a “despicable attempt by the Democrats to undermine democracy,” according to attorney James Bopp Jr., who represents Cawthorn.

Bopp said such a claim as is being advanced runs contrary to the First Amendment.

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“The word in Section 3 of the 14th Amendment is, quote, ‘engage,'” Bopp said. “Engage connotes conduct, not speech.”

Bopp also disputes labeling the events of Jan, 6 an insurrection.

He said the attempt to use a 19th Century law to block Cawthorn “spits in the grave of all those Union soldiers that fought in the Civil War to preserve the Union and free the slaves and who fought a bona fide rebellion and insurrection.”

If the challenge to Cawthorn survives, it will be heard by election officials within his district, then ultimately by the state’s Board of Elections, which has three Democrats and two Republicans.

In his lawsuit to block the challenge from being heard, Cawthorn’s lawyers said that 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,” according to CNN.

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Bopp told The New York Times that the challenge was “the most frivolous case I’ve ever seen,” and an “unethical” manipulation of law that could harm anyone liberals want to call “insurrectionists.”

“This is the real threat to our democracy,” he said. “Just by bringing the complaint, they might jeopardize a member of Congress running for re-election.”

“They have multiple targets,” he said. “It just so happens that Madison Cawthorn is the tip of the spear.”

This article appeared originally on The Western Journal.

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