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(Photo by Tim Evanson/Creative Commons)

On Wednesday, a Maricopa County Superior Court judge was told by attorneys for Arizona State Rep. Mark Finchem and U.S. Reps. Andy Biggs and Paul Gosar that their clients are eligible to hold office. Judge Christopher Coury is hearing the case brought by progressives hoping to knock the Republicans off the ballot.

The progressive group,  Free Speech For People, is hoping to disqualify Finchem, Biggs, and Gosar from running for office by claiming that any involvement they had in the January 6 rally and protest at the U.S. Capitol of the 2020 election results amounted to engaging in an insurrection or rebellion.

Free Speech For People is relying on a  provision of the Fourteenth Amendment which holds that elected officials who have participated in insurrection or rebellion cannot hold office in the future.

Legal expert, Ilan Wurman, an associate professor at Arizona State University’s Sandra Day O’Connor College of Law does not believe the argument holds water. Wurman say that it be difficult to show that Finchem, Biggs, and Gosar actively participated in an insurrection because they “did not take up of arms against the government.”

“We should be wary of stretching the Fourteenth Amendment’s language here,” Wurman told the Arizona Daily Independent in an email. “Many conservatives stretch the meaning of Article IV by claiming the flood of illegal immigrants is an “invasion” for constitutional purposes. I think that’s silly. But many on the Left should be wary of labeling this kind of protest an “insurrection,” which I think connotes the taking up of arms against the government.”

“One can think the events of January 6 were bad, that it involved mobs, and even that some participants sought to prevent the peaceful transfer of power,” explained Wurman. “But I’m skeptical that most courts will call that an insurrection for constitutional purposes, especially as applied to those who were expressing First Amendment rights to protest without unlawfully bearing arms in the process.”

“Finally, courts may conclude that the determination of what insurrection is a political question left to the political departments of government. There is a supreme court case from the 1840s holding precisely that: namely that it was up to Congress and its members to decide what the legitimate government of Rhode Island was (and what was an insurrectionary government). The same reasoning arguably applies here and the courts probably will want to stay out of it,” concluded Wurman.

Last month, a federal judge in North Carolina ruled against Free Speech For People in their lawsuit filed against Rep. Madison Cawthorn of North Carolina.

Judge Richard E. Myers agreed with Cawthorn that Congress in 1872 reserved for itself the power to decide who has participated in an insurrection, and that the North Carolina State Board of Elections could not make that determination in relation to Cawthorn’s candidacy, according to Cronkite News.

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