PHOENIX — A national organization involved in election issues is moving to keep state Rep. Mark Finchem from running for secretary of state.
Legal papers filed Thursday in Maricopa County Superior Court say the Oro Valley Republican is legally unqualified to hold public office. That’s based on an argument that his planning and participation in the Jan. 6 riot amounted to an act of insurrection.
What makes that relevant, according to the lawsuit, is the Fourteenth Amendment, approved by Congress in the wake of the Civil War. It says that anyone who “engaged in insurrection or rebellion” is precluded from holding any office in federal or state government.
And Ron Fein, the legal director of Free Speech for People, told Capitol Media Services that what occurred on Jan. 6 clearly meets that definition.
It's not just Finchem in the organization’s legal crosshairs.
Virtually identical lawsuits were filed Thursday to block Republican Congressmen Paul Gosar and Andy Biggs from running for reelection. Here, too, the legal papers cite their roles in the Jan. 6 event.
The timing is not coincidental.
This past Monday was the deadline for candidates to file their nominating papers. And Arizona law says that challenges to anyone's candidacy has to be filed within 10 working days.
Fein said it shouldn’t take long to resolve the issue.
He said state law gives trial judges 10 days after the legal action is filed to rule. In fact, a trial already has been set in Finchem’s case for April 12; none has yet been set in the claims against Gosar and Biggs.
Fein said either side has five days after a ruling to seek Supreme Court review. And Fein said the law requires the justices to “render a decision promptly.”
Finchem, in a Twitter post, call the legal filing “desperate.”
There was no immediate response from Gosar or Biggs.
The lawsuit against Finchem cites his claims, starting right after the 2020 election, that Donald Trump actually had won the election. More to the point, he attended the Jan. 6 demonstration.
And while the lawsuit does not suggest Finchem entered the Capitol—
he denies going inside -- it says that he was involved in the plan "to intimidate Congress and the vice president into rejecting valid electoral voters and subvert the essential constitutional function of an orderly and peaceful transition of power.''
The lawsuits also say that Gosar and Biggs, who were inside the Capitol trying to block the certification of the election results, also were involved in the planning of what occurred outside that day. And that, said Fein, is where the activities crossed the line into what became an insurrection.
“An insurrection is more than just a riot, it's more than just lawlessness,” he said. “It’s a violent uprising specifically intended to overthrow the constituted government, to overthrow a lawfully constituted regime.”
Fein said the events of Jan. 6 clearly fit that legal definition.
“It’s not only that this was a violent assault on the nation’s Capitol building with a complete takeover of the Capitol and threats that were very nearly realized of capturing and executing the vice president and the speaker of the House,” he said.
“The very goal of this attack was to disrupt, delay, ultimately prevent a peaceful transfer of power of the lawfully constituted government,” Fein continued. And that, he said, meets not only the definitions that would have been considered in 1868 by those who crafted the amendment but also those of any modern court.
This isn’t the first bid by Fein’s organization to knock those who he says were involved in the insurrection off the ballot. A separate action is pending in Georgia to disqualify Rep. Marjorie Taylor Greene from running again in 2022.
The organization also tried, without luck, to keep Rep. Madison Cawthorn of North Carolina from running again.
In that case, a federal judge hearing the case sided with Cawthorn’s attorney who pointed out something else in the Fourteenth Amendment.
It says that Congress, by a two-thirds vote, can override the disqualification. And the judge accepted the arguments that the 1872 Amnesty Act did that when it declared that “all political disabilities” imposed by the Fourteenth Amendment were “hereby removed from all persons whomsoever.”
The lawsuit isn’t the first time there have been allegations against Finchem about his role in the Jan. 6 attack on the Capitol.
Earlier this year, a majority of state House Democrats called for Finchem’s expulsion based on what they said were his improper actions before and during that event.
The complaints were dismissed by Rep. Becky Nutt, who chaired the House Ethics Committee. She said none of the claims back up the contention that Finchem “supported the violent overthrow of our government” as alleged or that he directly participated in the attack on the Capitol.
That latter point, said Nutt, was crucial to her decision to dismiss the complaints without even demanding a response from Finchem, and without investigating further.
“Absent such facts, the complaints amount to an objection to Rep. Finchem's advocacy of controversial political opinion,” Nutt said. “The Ethics Committee is not — and cannot become — a forum for resolving political disagreements, no matter how important the issues at stake.”
Finchem came back with his own ethics complaint against the Democrats after they asked the FBI and Department of Justice to investigate his activities on Jan. 6. He said they “conspired, maliciously, and in bad faith, to have me (and others) punished for exercising my First Amendment right to peaceably assemble and contest the legitimacy of the recent presidential election.”
That complaint also was dismissed.
But Finchem, Gosar and former Rep. Anthony Kern, R-Glendale, subsequently filed a defamation suit against Rep. Charlene Fernandez, D-Yuma, one of the signers of that letter to federal agencies, charging that she defamed them with comments about their roles in the events of Jan. 6.
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