In Arizona Desert, a New Defense Against Disqualification Emerges

A new line of defense is emerging in the Arizona desert that could shield a host of Republicans against a campaign by Democrats to block them from the 2022 ballots on the basis of the 14th Amendment’s Disqualification Clause.That clause, Section 3 of the 14th Amendment, passed in the wake of the Civil War, banned Confederates who had taken an oath to the federal government from holding office after the war. It was circumscribed by subsequent legislation offering amnesty to many of those Confederates. Democrats have been trying to mobilize the Disqualification Clause, which has not not been invoked in more than a century, to bar from office those alleged to have been involved in the events of January 6, 2021.The latest defense against the move, crafted by an Arizona state judge, Christopher Coury, is premised on the argument that only Congress — not states or private citizens — have standing to invoke that obscure constitutional provision to bar candidates from office.While the state court decision is not binding elsewhere in the country, it could offer a blueprint for those facing disqualification pushes elsewhere, including a potential 2024 challenge against President Trump. As Judge Coury put it, “plaintiffs have no private right of action to assert claims under the disqualification clause.” This — if used in other courts — could halt litigation brought by voters against members of Congress such as Representatives Madison Cawthorn and Marjorie Taylor Greene. In defending candidates for office from challenges that emanate from anywhere but Congress itself, Judge Coury articulated a comprehensive legal protection against a widening, if thus far unsuccessful, effort to keep alleged “insurrectionists” off state and federal ballots nationwide.Most immediately, his decision kept Andrew Biggs and Paul Gosar, both congressmen, and Mark Finchem, a state representative, on the Arizona ballots for the August 2 primary.Judge Coury did not rule on the underlying questions of whether Mssrs. Biggs, Gosar, and Finchem were guilty of insurrection, or whether there was an insurrection at all. The judge did rule on who should have the final say in these insurrection cases. “The text of the Constitution is mandatory,” Judge Coury wrote. “It sets forth the single arbiter of the qualifications of members of Congress; that single arbiter is Congress.”Judge Coury went on to opine that Arizona was not a forum for a “detailed analysis of the complex constitutional, legal and factual issues presented in this case,” ruling against arguments by the group spearheading many of the disqualification efforts, Free Speech for People, that the Constitution empowered states to make these kinds of determinations.In his decision, Judge Coury underlined the reality that none of the candidates in question — and indeed none of the candidates being challenged nationwide — have been “charged with or convicted of any state or federal crime that relates to insurrection or rebellion.”While more than 800 persons involved in the events of January 6 have been charged with a range of offenses, with the most serious being “seditious conspiracy,” none so far have faced an “insurrection” rap. Insurrection is not a crime defined by the Constitution. A professor at South Texas College of Law, Joshua Blackman, has been at the forefront of arguing that the Disqualification Clause can only be activated by Congress, not lawsuits by private citizens. Mr. Blackman tells the Sun that when it comes to giving the Disqualification Clause effect, “Congress is in the driver’s seat.” He notes that Speaker Pelosi could “propose such legislation tomorrow,” but has thus far failed to do so. In the absence of that, Mr. Blackman notes, “the law is not on the side” of those seeking to disqualify candidates. The events in Arizona are taking place against a rapidly developing disqualification landscape. Another Free Speech target, Ms. Greene testified in a hearing last week about her actions on January 6. In fighting for her political life, she insisted “I never mean anything for violence.”

In Arizona Desert, a New Defense Against Disqualification Emerges

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