An Arizona judge has tossed lawsuits that attempted to disqualify Reps. Paul Gosar (R-Ariz.) and Andy Biggs (R-Ariz.) from holding office.
The suits, which also took aim at state Rep. Mark Finchem, a Republican, failed because the U.S. Constitution does not provide for private action to enforce Section 3 of the U.S. Constitution’s 14th Amendment, Superior Court Judge Christopher Coury ruled.
The section, known as the Disqualification Clause, says that no person shall hold a federal office if they “have engaged in insurrection or rebellion” against the government.
Two groups linked to Sen. Bernie Sanders (I-Vt.), a self-described socialist, filed the complaints, claiming that Gosar, Biggs, and Finchem violated the clause because they “helped facilitate” the Jan. 6, 2021, breach of the U.S. Capitol.
But the clause clearly states that Congress is the body that has the power to enforce the section, a determination also outlined in one of the few cases that deal with it, Coury said.
“Congress has not created a civil private right of action to allow a citizen to enforce the Disqualification Clause by having a person declared to be ‘not qualified’ to hold public office,” the judge ruled.
Plaintiffs, expecting such a judgment, also argued that the ability of citizens to challenge candidates is created by a state law, but Coury also disagreed.
The law says that “Any elector may challenge a candidate for any reason relating to qualifications for the office sought as prescribed by law.”
“In sum, even assuming arguendo that the court were to accept plaintiffs’ argument that Arizona (and not just Congress) had the power to create a private right of action to enforce the Disqualification Clause, A.R.S. § 16-351(B) does not do this,” Coury said. “To expand the inquiry to include disqualifications—or who is proscribed from holding office—would re-write the applicable statute and create a cause of action and remedy in a statutorily-created body of law. This would be contrary to established precedent.”
The qualifications for members of Congress are exclusively determined by each chamber, as outlined in Article 1, Section 5 of the U.S. Constitution. The qualifications for officials in Arizona’s Executive Branch—Finchem is running to be secretary of state—are stated in the Arizona Constitution.
Coury dismissed the complaints.
“Today’s ruling is a win for the Constitution. The 14th Amendment allows the House of Representatives to determine eligibility to serve, not some left-wing, radical, special interest group,” Biggs said in a statement.
Challengers didn’t respond to a request for comment.
Coury is the third judge to rule on complaints lodged by Free Speech for the People, a nonprofit that says its aim is to “fight for free and fair elections, for reliable and secure voting systems, and for the bedrock principle that, in a democracy, all voters must have their votes properly counted.” More recently, the group launched a campaign against officials linked to Jan. 6, seeking to bar them from holding office.
The ultimate goal, according to the group, is to ensure former President Donald Trump cannot win the 2024 election.
In a similar challenge against Rep. Madison Cawthorn (R-N.C.), U.S. District Judge Richard Myers II, a Trump appointee, in March entered a preliminary injunction against enforcement of a state law that permits a qualified voter who is registered in the same district as the office of a candidate for an office in the state to challenge the candidate’s constitutional or statutory qualifications for office, including the Disqualification Clause.
Myers ruled that enforcement of the clause was removed by Congress by two laws: the Amnesty Act of 1872, which said that “all political disabilities” imposed by the section no longer applied to people, with certain exceptions; and the Amnesty Act of 1898, which ended the disabilities for everybody else.
“The plain language of these statutes, first removing the disability from ‘all persons whomsoever’ except those listed in the statute and, second, removing the disability from the excepted persons, demonstrates that the disability set forth in Section 3 can apply to no current member of Congress,” the judge said.
Rep. Marjorie Taylor Greene (R-Ga.) offered an argument along those lines in a request for an injunction in the challenge against her, but U.S. District Judge Amy Totenberg denied the request.
Totenberg, an Obama appointee and a sister of NPR legal correspondent Nina Totenberg, ruled that the Amnesty Act only applied retroactively. She also rejected Greene’s assertion that the Georgia law the challenge invoked violated her constitutional rights.
Greene appeared at a hearing in the case on Friday.