Judge boots case to disqualify Gosar, Biggs and Finchem from ballot as ‘insurrectionists’

A trio of lawsuits that sought to disqualify Republican Congressmen Andy Biggs and Paul Gosar and state Rep. Mark Finchem from the ballot for their alleged roles in the January 6 attack on the Capitol was dismissed Friday. 

“This Court will follow the restrained and judicious lead of the federal courts,” Maricopa County Superior Court Judge Christopher Coury wrote. “Arizona’s election challenge framework is ill-suited for the detailed analysis of the complex constitutional, legal and factual issues presented in this case.”

The lawsuits are part of a growing legal effort to use the Fourteenth Amendment to disqualify candidates because of their support of the January 6 attack, claiming they are “insurrectionists” and thus unable to hold public office. The amendment was adopted during Reconstruction after the Civil War and was intended to bar Confederate leaders from being elected to positions of power.  

Biggs and Gosar are seeking re-election, while Finchem is running for secretary of state.

Free Speech For People, the group behind the suits, has made a similar challenge in the past: It sought to have North Carolina U.S. Rep. Madison Cawthorn barred from that state’s ballot on the grounds that he is disqualified by the Fourteenth Amendment. But the attempt has so far fallen flat after a federal judge appointed by former President Donald Trump ruled that the Amnesty Act of 1872 gave amnesty to all future insurrectionists.

In his advisory opinion, Coury noted that Finchem, Gosar and Biggs have not been “charged with or convicted of any state or federal crime that relates to insurrection or rebellion.”

Both Biggs and Gosar argued that only Congress has the constitutional power to judge the qualifications of its members, an argument that Coury found persuasive. 

“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,” Coury’s opinion said. “Moreover, a state judicial trial relating to the qualifications of Rep. Biggs and Rep. Gosar arguably implicates the doctrines of federalism and separation of powers between the branches of the government.”

Despite the court dismissing the case, Coury made it clear that it was not giving an opinion on the trio’s involvement in Jan. 6 or that they still may face legal repercussions. 

“To be clear, it is a mistake to conclude that the Court is opining that the Candidates’ involvement in the events of January 6, 2021 never can be subject to any judicial review,” the judge wrote. “This decision should not be misconstrued in this way. 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.” 

Free Speech For People told the Arizona Mirror it intends to appeal. 

“This ruling is contrary to the law,” the organization said in a statement. “Arizona is not exempted from the mandate of Section 3 of the Fourteenth Amendment to the U.S. Constitution. A candidate who has taken an oath of office and then engaged in insurrection has no place on a future Arizona ballot. We will be appealing this decision to the Arizona Supreme Court.”

Coury said the “ultimate trial” will be the “one decided by Arizona voters who will have the final voice about whether each Candidate should, or should not, serve in elective office.”