Judge dismisses case to block Biggs, Gosar, Finchem from office over Jan. 6 activities
A judge has dismissed a lawsuit challenging the rights of three Arizona Republicans to run for office over their participation in rallies that led to the violent Jan. 6 attack on the U.S. Capitol.
A voting rights group sued U.S. Reps. Andy Biggs and Paul Gosar and state Rep. Mark Finchem, claiming their participation in an insurrection and their efforts to overturn the 2020 presidential results makes them ineligible for reelection.
Maricopa County Superior Court Judge Christopher Coury rejected arguments that a 150-year-old law adopted after the Civil War could be used to disqualify the Arizona lawmakers and keep their names off the 2022 ballot.
Coury said the disqualification clause tied to the 14th Amendment does not allow a private citizen to sue to prevent a candidate from running for office.
"Congress has not created a private right of action to allow a citizen to enforce the Disqualification Cause by having a person declared to be 'not qualified' to hold public office," Coury wrote in his 19-page ruling.
Coury said Congress is considering legislation introduced in 2021 to enforce the clause, but he noted it would allow only the U.S. attorney general to file a civil action in federal court, not a private party in state court.
The ruling was made public Friday.
The lawsuit, filed by a handful of Arizona voters working with the group Free Speech for People, is part of a multistate effort targeting far-right lawmakers who sought to prevent Congress from certifying Joe Biden as president.
Lawyers for the group filed notice on Friday they are appealing Coury's ruling to the Arizona Supreme Court.
Read the document: Ruling in Gosar Biggs Finchem case
Lawyers for Biggs, Gosar and Finchem praised Coury's ruling on Friday, describing it as thorough and reasoned.
"This is the latest and most clearly reasoned decision from the courts on this issue," said Kory Langhofer, who represents Biggs. "It will certainly be quoted and cited by the other courts around the the country that are reviewing the same issue."
Jack Wilenchik, who represents Finchem, R-Oro Valley, said the judge made a good decision "supported by 100 years of law and common sense."
He said the plaintiffs in the case were "getting cute" in attempting to apply a historical clause to a contemporary issue.
He said the judge saw through the attempt to use a lawsuit in state court to determine criminal conduct.
"No candidate should not be subject to this kind of thing — a private criminal trial when they run for office — a Spanish inquisition," Wilenchik said.
Gosar's lawyer, Alexander Kolodin, said the lawsuit was a broad attack on free speech.
"I see it as an attempt to suppress conservative speech and punish it," he said. "The impetus for the suit … is to establish some precedent to punish conservatives for speech they don't like."
Similar lawsuits were filed against U.S. Reps. Madison Cawthorn, R-N.C., and Marjorie Taylor Greene, R-Ga. The lawsuits accused them of participating in Jan. 6 in an effort to overturn the election and restore Donald Trump to the White House.
A federal judge in March dismissed the suit against Cawthorn. But another federal judge on Monday allowed the case against Greene to go forward, ruling she failed to meet the burden of proof to block the suit.
What is the 'insurrection clause'?
The challenges are rooted in a provision of the 14th Amendment. The so-called insurrection clause was applied in the post-Civil War period numerous times, but it hasn't been used in about 150 years.
At a Superior Court hearing Wednesday, lawyers for the lawmakers told Coury only Congress had the authority to invoke the law, which blocked those who "engaged in insurrection or rebellion" from seeking office.
They argued none of the lawmakers has been charged with a crime related to Jan. 6. and their rhetoric about the election is protected speech.
"Attempts to subvert the existing structure of government cannot, in and of themselves, become a crime," Kolodin said. "It is absurd to claim that a sitting member of the United States Congress advocated for the overthrow of the United States government."
Langhofer said claims that the lawmakers broke the law were sensationalist.
"Planning a rally and planning an insurrection are very different things," he said.
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Wilenchik argued the Disqualification Clause has a very limited purpose and specifically targeted members of the Confederacy.
"It was never intended to create some new, forever, long-lasting disability," he said.
Even if it did, no congressional statute exists that authorizes a state court to try somebody under the insurrection clause, Wilenchik said.
He acknowledged a criminal conviction could be used to keep someone from holding office.
"If someone is convicted of insurrection or rebellion, they can be barred from office," he said. "Defendant Finchem has not been convicted of any such crime."
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Free Speech for People lawyer Jim Barton said the idea that clause can't be invoked absent a criminal conviction is "just another red herring." He said there's no requirement for a criminal conviction.
However, he asked Coury for time to collect evidence to determine what Gosar, Biggs and Finchem did in the runup to Jan. 6. He noted that a trial would force the disclosure of evidence.
"As far as Rep. Biggs, we allege he helped plan the rallies that led to the insurrection," Barton said. "(We) did allege facts tying Biggs to the insurrection."
Judge says Cawthorn, Greene cases different from Arizona cases
Coury pointed out in his ruling the Cawthorn and Greene cases differed from the Arizona case because they were seeking rulings in federal court to stop state court proceedings.
He noted two federal judges issued well reasoned opinions that reached diametrically opposite conclusions.
In Arizona, he said, the candidates were defending themselves against a state court injunction that would prevent their names from appearing on a ballot. The federal courts were not being asked to decide if a private lawsuit could be brought under the Disqualification Clause, he said.
"The current uncertainty in federal courts" about enforcement of the Disqualification Clause precluded him from issuing injunctions against the candidates, Coury said.
Coury said plaintiffs had not met the elements needed to obtain a preliminary injunction and keep Biggs, Gosar and Finchem off the ballot until an evidentiary hearing establishes their involvement in the Jan. 6 attack.
He also said plaintiffs could have acted sooner, rather than forcing the courts to work on an expedited schedule against election deadlines.
"Because each of the candidates is a public official, litigations 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," Coury said.
Arizona's election framework is "ill-suited" for the complex legal, constitutional and factual issues raised by the lawsuit, Coury said.
"The court declines the invitation to transform this election challenge into something for which it was not intended," he said in the ruling.
Gosar, Biggs and Finchem all have circulated baseless conspiracy theories about Trump's 2020 loss in Arizona and pushed for the state Senate's partisan audit of Maricopa County's election results.
The suit faults Gosar for his pre-attack participation in a rally near the White House. It claims he "publicly supported the insurrection as it was happening" on his social media channels. It notes the allegation that he sought blankets pardons for people involved in the rally for unrelated criminal probes.
The group called Gosar a leader of the movement promoting the false claims of a stolen election, and said he worked with "violent extremists, on a plan to delegitimize, challenge, and ultimately overturn the results of the presidential election."
Ali Alexander, organizer of the "Stop the Steal" effort in Washington on Jan. 6, called Gosar the "spirit animal" of the effort in a since-deleted video posted before the riot.
Alexander described Biggs as a hero of the movement during a 2020 rally in Phoenix and led a chant in his name. In a Dec. 17 federal lawsuit, Alexander said he had multiple conversations with Biggs and Gosar and relayed that information to the U.S. House Select Committee investigating the Jan. 6 Capitol attack.
Ali Alexander:'Stop the Steal' figure, who boasted of ties to Biggs, Gosar, cooperating in Jan. 6 probe
Biggs in 2021 said he had never met nor associated with Alexander and maintained he was not involved in the planning of the Jan. 6 "Stop the Steal" rally.
The suit alleges Biggs worked with Gosar to further the same plans to prevent Biden from taking office.
Biggs calls ruling a win for electoral system
Biggs in a social media post on Friday called the lawsuit a win for the nation's electoral system against harassment.
"The radical left is going to extreme lengths to prevent Republicans from running in congressional elections," he said. "The frivolous argument that has been used against me has been used in other states to target mainstream Republicans running for reelection."
As rioters fought past police and breached the interior of the Capitol, Biggs and Gosar were in the House calling to set aside electors chosen by voters in Arizona and Pennsylvania.
The suit claims Finchem should be disqualified in his bid for Arizona secretary of state because he already broke his oath to the U.S. Constitution as a state lawmaker.
Finchem was in the vanguard of Alexander's efforts to restore Trump to the presidency. He promised a Phoenix crowd of "Stop the Steal" supporters in December 2020 that he had evidence the election was rigged.
The four-term state lawmaker, who calls himself "the Honey Badger," has continued pushing election fraud theories and is now running for secretary of state, Arizona's chief elections officer.
He said he traveled to Washington in the days ahead of the Jan. 6 rally to deliver data to then-Vice President Mike Pence in an effort to sway him to reject electoral votes.
Finchem claimed after the riot that he was nowhere near the Capitol when it was breached and only learned about it afterward at his hotel. But his own texts revealed he was in the thick of the crowd and in direct communication with "Stop the Steal" organizers who warned "they are storming the Capitol."
Coury, in his ruling, said Arizona statutes allow citizens the right to sue to establish that a candidate has not met the requirements to run for office.
"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," he said.
He emphasized the court was taking no position on whether Biggs, Gosar and Finchem participated in an insurrection.
"Let the record reflect that this ruling neither validates nor disproves plaintiff's allegations against the candidates," he said. "The court expressly is not reaching the merits of the factual allegations in this case."
Robert Anglen is an investigative reporter for The Republic. Reach him at email@example.com or 602-444-8694. Follow him on Twitter @robertanglen
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