An Arizona judge's ruling against efforts to keep two Republican congressmen and a state representative off the November ballot due to their alleged Jan. 6, 2021, "insurrection" roles at the U.S. Capitol likely foreshadows the outcome of similar efforts in other states, according to the attorney who argued the case.
Superior Court Judge Christopher Coury ruled against motions brought by plaintiffs seeking the removal of U.S. Reps. Paul Gosar (R-Ariz.) and Andy Biggs (R-Ariz.) and state Rep. Mark Finchem, a Republican, saying the 14th Amendment's Disqualification Clause requires congressional action to remove an elected official, not a suit brought by private citizens in a state court.
"The express language of the United States Constitution controls this issue. The Disqualification Clause creates a condition where someone can be disqualified from serving in public office. However, the Constitution provides that legislation enacted by Congress is required to enforce the disqualification pursuant to the Disqualification Clause," Coury ruled.
"Aside from criminal statutes dealing with insurrection and rebellion which Congress has enacted (lawsuits which require the government, not private citizens, to initiate), Congress has not passed legislation that is presently in effect which enforces the Disqualification Clause against the candidates," Coury said.
He was referring to Section 3 of the 14th amendment as the "Disqualification clause" approved by Congress following the Civil War to bar former officials of the Confederacy from holding office under the U.S. Constitution.
Coury noted that "legislation that proposes to enforce the Disqualification Clause currently is pending in the United States Congress, but has not yet been enacted. Therefore, given the current state of the law and in accordance with the United States Constitution, Plaintiffs have no private right of action to assert claims under the Disqualification Clause."
The 11 plaintiffs, all individual Arizona citizens, who filed the complaint against Gosar, Biggs, and Finchem were represented by attorneys with Free Speech for People (FSP), an Austin, Texas-based left-wing advocacy group.
An FSP spokesman told The Epoch Times the plaintiffs reject the judge's reasoning and are planning to file an appeal to the Arizona Supreme Court.
"This ruling is contrary to the law. Arizona is not exempted from the mandate of Section Three of the 14th Amendment to the U.S. Constitution. A candidate who has taken an oath of office and then engaged in insurrection has no place on a future Arizona ballot. We will be appealing this decision to the Arizona Supreme Court."
The FSP is also involved in related litigation against Representatives Madison Cawthorne (R-N.C.) and Marjorie Taylor Greene (R-Ga.).
In their complaint, the plaintiffs claimed Finchem—who is now seeking the Secretary of State position in the November election—was an active January 6 participant and coordinated his actions with Gosar and Biggs.
"Finchem was engaged in efforts to intimidate Congress and the Vice President into rejecting valid electoral votes and to subvert the essential constitutional function of an orderly and peaceful transition of power," according to the complaint.
"Finchem was engaged with the January 6 attack by being in close contact with the planners of the Wild Protest, including throughout the day on January 6, and by participating in the attack with the advance knowledge that it was substantially likely to lead to the attack," the complaint said.
"Finchem promoted the events of January 6 ahead of time. He coordinated many of his efforts with U.S. Representatives Paul Gosar and Andrew Biggs, and agreed with them on a plan to first delegitimatize, then challenge, and finally overturn the 2020 presidential election," the complaint continued.
George Wentz, an attorney representing Gosar, told The Epoch Times that "the 14th amendment establishes the disqualification of people that have been engaged in insurrection or given aid and comfort to the enemy. Right there, in the 14th amendment, it says Congress shall decide how this will be enforced. And if only Congress can determine this, then certainly a state cannot."
Wentz said he believes the attorneys representing the plaintiffs are "trying to bypass the Department of Justice, they are trying to appoint themselves as a self-appointed, unaccountable to the people prosecutorial arm of the government, but they are trying to do [it] through a state law in a state civil court using [the] standard of the preponderance of the evidence."
But under the federal law approved by Congress, such prosecutions must be done in federal criminal courts using a standard of clear and convincing evidence beyond a reasonable doubt, Wentz pointed out. Congress did so, he said, by approving a law that directs the President of the United States, through the Department of Justice, to enforce the Disqualification Clause by initiating action in federal court in appropriate cases.
"So they're trying to do an end-run around the 14th Amendment itself," Wentz said.
A scheduling conference was held today between the parties, and appeal briefs are expected to be filed beginning next week, with a decision coming perhaps as early as mid-May.