Maricopa County judge on Friday rejected a bid by voters in Arizona to disqualify three lawmakers tied to the Jan. 6 insurrection at the U.S. Capitol.
Maricopa County Superior Court Judge Christopher Coury dismissed lawsuits against U.S. Representatives Paul Gosar and Andy Biggs and state Representative Mark Finchem, a Republican from Oro Valley, finding private citizens cannot sue under the disqualification clause of the 14th Amendment.
“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,” Coury found. That duty, he said, lies only with Congress, which can remove a member of Congress with a two-thirds vote.
Arizona law also does not create a private right of action, Coury wrote.
“Although it creates a private right of action allowing citizens to bring independent actions to establish that a person has not met the requirements prescribed by law, the plain language of this statute does not create a private right of action to argue that a candidate is proscribed by law from holding office,” the ruling states.
In a hearing Wednesday, an attorney for the voters asked Coury to initiate an evidentiary hearing, alleging that criminal offenses likely occurred by the lawmakers’ connection to the Jan. 6 insurrection. The judge denied that plea and pointed to a lack of an investigation or crime.
“This court will follow the restrained and judicious lead of the federal courts. Arizona’s election challenge framework is ill-suited for the detailed analysis of the complex constitutional, legal and factual issues presented in this case,” Coury wrote. “Plaintiffs have not cited persuasive authority or presented a developed legal argument suggesting that an advisory trial in this expedited framework must occur, and the court declines the invitation to transform this election challenge into something for which it was not intended.”
Coury noted the voters could have initiated legal action much earlier given the complex magnitude of the issue, which required more time than afforded under expedited election trials.
“Because each of the candidates is a public official, litigation about whether each participated in an insurrection or rebellion, and whether each was disqualified under the Disqualification Clause, could have been filed much earlier than April 2022,” he found. “The importance of the events of Jan, 6, 2021, and the legal and constitutional issues associated with a judicial inquiry of these events, compels a deliberate and reasoned judicial inquiry.”
The ruling also addressed that more time would’ve been needed to get into an allegation from the voters questioning Gosar’s speech and connection to the Oath Keepers, an insurrectionist group, in November 2020.
Gosar reportedly met with members of the Yavapai County chapter of the Oath Keepers. During the meeting, he was asked if the U.S. was “heading into a civil war,” to which he replied: “We’re in it, we just haven’t started shooting at each other yet.”
The Southern Poverty Law Center describe the Oath Keepers as one of the largest far-right antigovernmental groups in the U.S. At least 20 members of the Oath Keepers have been arrested and face criminal charges for their activities on Jan. 6.
“During oral argument, counsel for Rep. Gosar raised legitimate constitutional rights, issues and legal defenses that would need to be considered and decided,” Coury wrote. “These include the rights to free speech and assembly under both the United States Constitution and Arizona Constitution.”
Kolodin told the court Wednesday that Gosar’s speech was protected under the incitement test in the U.S. Supreme Court case Brandenburg v. Ohio, which found speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”
Representatives Madison Cawthorn of North Carolina and Marjorie Taylor Greene of Georgia have faced similar lawsuits.
In the case against Cawthorn, a judge found the Amnesty Act of 1872, which pardoned confederates, overruled the Constitution’s 14th Amendment prohibiting “insurrectionists” from Congress.
Greene was in court Friday testifying in the lawsuit brought over whether she should be disqualified for her participation in the Jan. 6 insurrection.
“The case against @RepMTG will not survive appeal,” Gosar tweeted Friday. “Today the court in AZ dismissed the same lawsuit against me and @RepAndyBiggsAZ and @RealMarkFinchem in a meticulously detailed ruling. If they can’t win at the ballot box the leftists run to the courts.”
Finchem celebrated similarly.
“Case dismissed! Finchem vindicated AGAIN,” Finchem tweeted Friday.
