An organization calling itself “Free Speech for People” filed lawsuits against three prominent Arizona Republican officials, asserting that they are unqualified to hold office due to their connections to the January 6, 2021 protest at the U.S. Capitol. The lawsuits aim to stop Representative Paul Gosar (R-AZ-04) and Representative Andy Biggs (R-AZ-03) from running for reelection, and State Representative Mark Finchem (R-Oro Valley) from running for Arizona Secretary of State, claiming the three engaged in “insurrection,” which is prohibited by the Fourteenth Amendment.
Jack Wilenchik, the attorney for Finchem, told the Arizona Sun Times, “The lawsuit is long on publicity but short on law. No convictions or congressional authority for suit.” He told Capitol Media, “We don’t allow random members of the public to accuse politicians of a crime and remove them from office.” He explained how it would open the floodgates for anyone to try and remove any elected official they disagreed with, from Donald Trump to Hillary Clinton.
Section 3 of the Fourteenth Amendment states that no one shall hold office, including Congressional office, who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” It was adopted after the Civil War in order to bar Confederate leaders from holding office.
Free Speech for People filed a similar lawsuit against Representative Madison Cawthorn (R-NC-11) which was dismissed. The judge ruled that the Amnesty Act, passed by Congress in 1872, eliminated that disqualification. The Act stated, “all political disabilities imposed by the third section of the fourteenth article of amendments of the constitution of the United States are hereby removed from all persons whomsoever … .”
Like the three Arizona officials, Cawthorn was not involved in violence at the U.S. Capitol.
HUGE VICTORY!
The left’s lawfare tactics have failed.
On to re-election! https://t.co/LqzyMoNOC2
— Madison Cawthorn (@CawthornforNC) March 4, 2022
Finchem’s response said the lawsuit should be dismissed for failure to state a claim. Wilenchik stated in the answer, “Section 5 of the Fourteenth Amendment vested Congress with the sole authority to enforce the Clause, and Congress has not seen fit to confer on the state (or federal) courts any power to enforce it in the absence of prior a criminal trial and conviction — much less through an expedited civil proceeding such as this.”
His answer points out that the only statutes that call for disqualification of elected officers for insurrection apply if there has been a criminal conviction, which isn’t the case.
He explained what happened to the insurrection clause. “By the time that the Fourteenth Amendment was ratified (1868), there were numerous ex-Confederates who were serving honorably in public office; and so the Disqualification Clause’s ‘main purpose’ was to disqualify from office only the ‘leading and most influential characters who had been engaged in the Rebellion,’ as ‘punishment for [their] offense[s].’”
A federal circuit court recognized in 1869 that “the Disqualification Clause could only be enforced through acts of Congress, and that any such acts must satisfy due process.”
Finchen’s response warned if the lawsuit goes ahead, “To allow such a proceeding would also be to effectively cede the attorney general’s exclusive authority to prosecute federal crimes over to private parties who lack the legal or ethical restraints of a true prosecuting agency.”
Kory Langhofer, the attorney for Biggs, told Capitol Media that the Fourteenth Amendment’s insurrection clause also prohibits those who engage in it from holding office, but the plaintiffs didn’t bother to challenge the officials’ presence in office now. They only sued to get them removed from the ballot. Waiting until after the April 4 filing deadline does not allow enough time for a trial on the issue, and Langhofer believes since they delayed filing, the doctrine of “laches” applies and the court can throw the suit out.
Marc Elias, known for being the legal mastermind behind much of the Left’s election-related efforts, tweeted in December that he hoped it would be an effective legal strategy.
My prediction for 2022: Before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress.
We may even see litigation. pic.twitter.com/pF7P2fw0kn
— Marc E. Elias (@marceelias) December 21, 2021
Gosar’s campaign consultant had even harsher words regarding the lawsuits. “This is a frivolous suit. It’s been dismissed everywhere they tried it because it is factually and legally baseless,” Rory McShane told the Arizona Mirror. “The lawyers behind it should be disbarred for abusing the courts.”
The defendants who have been convicted of crimes related to the Jan. 6 protest were not found guilty of insurrection. They were convicted of crimes like trespassing, assaulting police officers, and disorderly conduct inside the Capitol building.
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Rachel Alexander is a reporter at the Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Background Photo “Voting Booths” by Tim Evanson. CC BY-SA 2.0.
