PHOENIX — A judge will not bar three officials who allegedly were involved in some way in the Jan. 6, 2021 riot from running again for office.
In a 19-page ruling released Friday, Maricopa County Superior Court Judge Christopher Coury said private individuals have no legal right to enforce a provision of the U.S. Constitution that bars those who have engaged in "insurrection'' from holding public office. He said only Congress can create such a law.
Coury also rejected a claim by Free Speech for People, which brought the lawsuits, that state election laws give them the right to challenge whether Rep. Mark Finchem, R-Oro Valley, is qualified to run for secretary of state and whether Congressmen Paul Gosar and Andy Biggs are legally entitled to seek another term in the U.S. House. He said those laws are designed solely to determine if candidates meet what is required under state law.
Finally, the judge said that the challengers waited too long to bring their claims.
He pointed out that all three have been elected officials now for years. Coury said challengers cannot come in now, shortly before the election, and seek to start presenting factual evidence of what was the role of all three in the attack on the U.S. Capitol.
Coury was careful to say that he is not reaching any legal conclusions about the legality of what any of the candidates did either leading up to or on Jan. 6. Nor is he saying that they cannot be brought to justice.
“Indeed, there may be a different time and type of case in which the candidates’ involvement in the events of that day appropriately can and will be adjudicated in court,” the judge wrote. But he said this lawsuit, using state election laws designed to deal with candidate qualifications, is not that case.
“And, irrespective of this decision, there ultimately will be a different trial for each candidate: one decided by Arizona voters who will have the final voice about whether each candidate should, or should not, serve in elective office.”
Coury's ruling is not the last word. Jim Barton, who represents Free Speech for People, late Friday asked the state Supreme Court to intercede.
But the lawyers for the three said that the ruling is well-grounded in fact and law and will not be overturned.
In fact, attorney Kory Langhofer who represents Biggs, said that Coury actually went further than judges in other states where similar challenges have been filed.
“It will certainly be quoted and cited by other courts around the country that are reviewing the same issue,” he said.
Jack Wilenchik, who represents Finchem, said Coury’s decision is “well-grounded in over 100 years of law and common sense.”
Gosar’s attorney, Alexander Kolodin, took a swat at Free Speech for People for even trying to knock the candidates off the ballot.
“If the radical left hopes to use our courts to punish dissenting views they came to the wrong state,” he said.
Barton brought the case under a provision of the 14th Amendment to the Constitution. Approved in the wake of the Civil War, it bars states from enacting laws that deprive citizens of equal protection under the law.
But Congress also included a provision which says individuals cannot serve in public office if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Barton said that the activities of all three in planning the Jan. 6 rally that led to the riot and the fact that Finchem himself went to the Capitol shows they are guilty of insurrection and therefore cannot have their names on the 2020 ballot.
Coury however, said those arguments, even if true, have multiple flaws. And one of the biggest, he said, is that Congress has never enacted any law to actually enforce the provision.
The judge noted that Rep. Steve Cohen, D-Tenn., has introduced a measure this session to fill that gap, complete with language saying it would apply to both members of Congress as well as holders of state office. But even if that were to become law, Coury said, it doesn't help Barton's case.
“The proposed legislation does not create a private right of action,” the judge noted. Instead, it would allow the federal attorney general to file suit in federal court and have the case heard before a panel of three judges.
And there's something else.
The judge noted there is, in fact, a federal law prohibiting rebellion or insurrection. But he said none of the candidates have been charged with that crime, much less convicted.
Coury acknowledged that state election laws do empower judges to determine if candidates meet the “qualifications for the office sought as prescribed by law.” So, for example, he said that could keep Finchem off the ballot if he did not meet the requirement of being at least 25 years old, a U.S. citizen for at least 10 years and a state resident for the prior five years.
But Coury said Barton was asking him to bar the trio from running for engaging in conduct that is “proscribed” by law, meaning conduct that is prohibited. And even if there were a finding that they had engaged in insurrection, that is not something that can be addressed through state election law challenges.
Coury also pointed out that Biggs and Gosar have an additional protection: Each chamber of Congress has the exclusive right to judge whether its members are qualified for office.
“It would contradict the plain language of the United States Constitution for this court to conduct any trial over the qualifications of a member of Congress,” he wrote.
The judge also rejected a request by Barton to have an actual trial where he could present evidence to back his claim that each of the defendants engaged in insurrection.
He noted that the language in the 14th Amendment about disqualifying people from holding office applies not just to candidates but also public officials.
More to the point, Coury said pretty much everything claimed about what happened on Jan. 6 has been known for months — meaning that a challenge could have been filed long ago, when there would have been the time to examine the allegations of what role each had, if any, in the riot. Instead, the judge said, the lawsuit filed earlier this month put him against a deadline of determining whether their names can go on ballots which start going out in July.
“The importance of the events of Jan. 6, 2020, and the legal and constitutional issues associated with a judicial inquiry of these events, compels a deliberate and reasoned judicial inquiry,” he wrote.
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