Article 1, Section 4 of the Constitution provides in clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
State authority to regulate the times, places, and manner of holding congressional elections has been described by the Court as “embrac[ing] authority to provide a complete code for congressional elections …; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental rights involved.” Smiley v. Holm, 285 U.S. 355, 366 (1932).
The Qualifications Clause of the Constitution, Article I, Section 2, Clause 2, merely provides “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”
The Disqualification Clause was added by Section 3 of the 14th Amendment following the Civil War:
Section 3 Disqualification from Holding Office
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Presumably one of the “safeguards” for congressional elections would be for the state to preclude anyone who participated in the planning and organizing of sedition against the United States government, or who participated in the violent insurrection against the government, from appearing on the ballot.
But the Ducey-packed Republican Arizona Supreme Court says “Meh, not our problem. It’s up to the Feds to disqualify these traitors from office.”
The Arizona Mirror reports, Arizona Supreme Court rejects ‘insurrectionist’ ballot challenge to Biggs, Gosar and Finchem:
The Arizona Supreme Court flatly rejected an attempt to disqualify Republican Congressmen Andy Biggs and Paul Gosar and State Rep. Mark Finchem from the 2022 ballot for their alleged roles in the Jan. 6 attack on the Capitol.
“The Candidates are not disqualified from appearing on the ballot for the 2022 primary election,” the court ruled Monday. The justices agreed with a lower court’s determination that the authority to disqualify candidates under the Fourteenth Amendment rests more in the hands of Congress than it does in the hands of the [state] courts.
The decision comes from a trio of lawsuits that are part of a growing legal effort to use the Fourteenth Amendment to disqualify candidates because of their support of the Jan. 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, which filed the lawsuits, said the Supreme Court ruling “gives a pass to political violence as a tool for disrupting and overturning free and fair elections.”
The AZ Supreme Court’s decision betrays the fundamental purpose of the 14th Amendment’s Insurrectionist Disqualification Clause and gives a pass to political violence as a tool for disrupting and overturning free and fair elections. https://t.co/kteQopc3rg
— FreeSpeechForPeople (@FSFP) May 9, 2022
In the lower court’s decision, the judge 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.”
Arizona Supreme Court Justice Clint Bolick did not participate in deciding the case; his wife, state Rep. Shawnna Bolick, is also running for secretary of state.
The Arizona Supreme Court denied a motion by Gosar requesting attorney fees in the case.
You should take note of the fact that for Congress to act, it requires a two-thirds vote of each chamber to disqualify a member. This gives the insurrectionists who plotted the coup and planned the sedition, and who participated in the insurrecton by giving aid and comfort to the violent MAGA/QAnon rioters on January 6 by following through on Trump’s coup plot – the 147 Republican lawmakers who still objected to the election results even after the Capitol attack – a veto over their disqualification from office. The accused criminals sit on the jury and can vote to acquit themselves. The framers of the 14th Amendment never contemplated a large-scale criminal enterprise like the Party of Trump.
Note: Mark Finchem is a state legislator running for Secretary of State, where he would be in position to steal an election for Donald Trump. His candidate qualifications are purely a state issue, and the Arizona Supreme Court could have enforced the 14th Amendment against Finchem, but failed to do so. State courts have both the power and the duty to enforce obligations arising under federal law, unless Congress gives the federal courts exclusive jurisdiction.
However, as law professor Gerard N. Magliocca explains, The 14th Amendment’s Disqualification Provision and the Events of Jan. 6:
[T]here is the question of whether Section 3 is self-enforcing. The answer is probably not. In 1869, Chief Justice Salmon P. Chase issued a circuit opinion holding it was not. This opinion was not well reasoned, as I explain in my paper on Section 3, and might not be followed by the current Supreme Court. But, then again, the court might come to the same conclusion today.
Congress enacted Section 3 enforcement legislation in 1870 that authorized the Department of Justice to bring quo warranto actions—a common-law writ asking, “by what warrant” does someone lawfully hold office—to oust from office some ineligible officials. But Congress repealed this statute in the 1940s as part of a broad cleanup of “obsolete” provisions. If Chase was right, then Congress would be well advised to enact new Section 3 enforcement legislation. The quo warranto provision of the 1870 Ku Klux Klan Act could be reinstated with some adjustments. For example, the act authorized actions against ineligible officials, not ineligible candidates. There are instances, though, where enforcement should be authorized before elections are held so as to resolve ex ante any uncertainty about whether someone can serve.
To date, Attorney General Merrick Garland’s Department of Justice has taken no legal action against any of the Coup Plotters in the Trump administration, in Congress, or in Republican state legislatures, or even against the slates of fake GQP electors from six states. Without any legal consequences, this only green-lights the next GQP insurrection and coup d’etat. The message to Republicans is that they can act with impunity to overthrow American constitutional democracy. The Constitutional safeguards have failed.
"More than a year after Attorney General Merrick Garland was confirmed, there has been no sign that federal prosecutors have set their sights on Trump or his close allies."
— FreeSpeechForPeople (@FSFP) May 9, 2022
How is the DOJ so asleep at the wheel that a former Attorney General has to call out its inaction? Holding a Seditionist President accountable for his coup attempt is not "political." #WhereIsTheDOJ #Hold45Accountablehttps://t.co/I5V6kJp15b
— Hold Trump Accountable Now (@impeachdtnow) May 9, 2022
We need an Attorney General who does not cower before Republican intimidation and threats and who will prosecute these traitors for their roles in the January 6 insurrection. Obama attorney general Eric Holder says the DOJ should indict Trump over the Capitol riot:
Former Attorney General Eric Holder said that former President Donald Trump should be indicted over his role in instigating the January 6, 2021, attack on the US Capitol.
Holder, who served as President Barack Obama’s attorney general, discussed the Justice Department’s investigation of the Capitol riot in an appearance Sunday on CBS News’ “Face the Nation.”
Obama AG Eric Holder tells me that while he initially thought indicting former President Trump would be too divisive, he now thinks there is evidence enough that he should be held “accountable” for his role in January 6th pic.twitter.com/65vyMnnWyN
— Margaret Brennan (@margbrennan) May 8, 2022
“At some point, people at the Justice Department, perhaps that prosecutor in Atlanta, are going to have to make a determination about whether or not they want to indict Donald Trump,” Holder said.
Holder was referencing an investigation into Trump’s bid to overturn the 2020 election being conducted by Fulton County District Attorney Fani Willis.
“Would you do it?” host Margaret Brennan asked of a decision to indict Trump.
“Well, I think there’s going to be sufficient factual information,” Holder said. “And I think that there’s going to be sufficient proof of intent. And then the question becomes, what’s the impact of such an indictment?”
“I’m an institutionalist. My initial thought was not to indict the former president out of concern of how divisive it would be. But given what we have learned, I think that he probably has to be held accountable,” he said.
* * *
A separate investigation into Trump’s role in the Capitol riot is being conducted by the House January 6 commission, with Republican commission member Rep. Liz Cheney saying last month that it had uncovered sufficient evidence to bring a criminal referral against Trump on charges of obstructing congressional proceedings and conspiring against the American people.
But the question of whether to make the criminal referral has split members of the panel, who don’t want to create the impression that Attorney General Merrick Garland is conducting a partisan investigation at the behest of the Democratic-led commission, The New York Times reported last month.
The DOJ is yet to act on a criminal referral made by the January 6 commission in December about Trump’s former chief of staff, Mark Meadows.
The FBI is conducting a separate investigation into the Capitol riot, though it is unclear if the probe implicates Trump at this stage.
Note: I am going to give the DOJ the benefit of the doubt here that this is because Mark Meadows was the “point man” for organizing the insurrection inside the White House, and the DOJ is building a conspiracy case against him far broader than just a contempt of Congress prosecution.
Eric Holder expanded on his comments in this interview with MSNBC’s Lawrence O’Donnell on Monday night.