By Kim McDarison
Ten Wisconsin plaintiffs, including two from Jefferson County, have filed a civil rights lawsuit in the United States District Court Eastern District of Wisconsin seeking a declaratory judgement to disqualify U.S. Sen. Ron Johnson, and U.S. Reps. Tom Tiffany and Scott Fitzgerald as candidates running for public office.
All three are Republican seat holders whose terms end Jan. 3, 2023. The seats come due for reelection in November, 2022.
The suit alleges the three defendants are no longer qualified to run for office as stipulated by the 14th Amendment of the U.S. Constitution in the aftermath of their alleged roles leading to and during the Joint Session of Congress held on Jan. 6, 2021.
A Joint Session of Congress, as set forth in the 12th Amendment of the U.S. Constitution, is held after each presidential general population election at which time the Vice President of the United States, acting in the role of President of the Senate, receives, and then opens, in the presence of the Senate and House of Representatives, sealed votes from each state’s delegates to the Electoral College.
From these votes, the formal election of the President of the United States is made.
The 10 plaintiffs from Wisconsin filed their complaint in March.
Since the filing of the suit, the three named defendants have each filed motions to dismiss it with the court. At least one argument posed by two of the defendants calls into question the plaintiffs’ “standing to pursue the case.”
On Friday, the plaintiffs, in a move to establish standing, each filed declarations with the court.
As of Friday, a decision about the lawsuit from the court is pending.
From the complaint
Jefferson County residents Dan Russler and Leslie DeMuth are among the 10 plaintiffs naming Johnson, Fitzgerald and Tiffany as defendants in a complaint filed with the federal court on March 10.
Within the 80-page document, the plaintiffs’ allege that the defendants committed actions that, as outlined by the 14th Amendment of the U.S. Constitution, disqualify them from running for public office.
Citing a passage from the amendment, the complaint reads: “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.”
The complaint continues and alleges: “This action seeks a declaratory judgement … establishing that Senator Ron Johnson and Representatives Tom Tiffany and Scott Fitzgerald, having previously taken oaths as members of Congress and/or the Wisconsin Legislature, engaged in insurrection or rebellion against the United States of America during the period between November 8, 2020 and January 6, 2021 …”
The document states that the plaintiffs are “citizen-voters residing in Wisconsin who are domiciled throughout the state and are constituents of the Defendants.”
The complaint reads: “The question before the Court arises solely under the United States Constitution and does not directly implicate any state law issue.”
Up until the 2020 presidential election, the complaint alleges, a “peaceful transition of presidential power had served as a hallmark of America’s great democracy,” citing some 231 years, “even amidst the Civil War,” noting that “no candidate for president had refused to acknowledge the legitimacy of an opponent’s Electoral College victory.”
Citing the presidency of Donald Trump, the complaint states: “Love him, or hate him, the implications of the decision of the President and his surrogates — including Defendants — to attack the legitimacy of the results of the 2020 election without legal or factual basis are significant, because they require answers to two crucial questions: (a) were the events of the January 6, 2021 Joint Session of Congress and those leading up to it an ‘insurrection’ within the meaning of the Fourteenth Amendment; and (b) did the Defendants engage or otherwise assist in the insurrection through the conduct alleged in this Complaint and their actions that will be revealed in discovery?”
The complaint alleges that “The falsehoods of Johnson, Fitzgerald, and Tiffany about the integrity of Wisconsin’s election procedures began even before citizens were allowed to cast their ballots in the 2020 Presidential Election and continued long after their lies were disproven. The Defendants, along with hundreds or even thousands of President Trump’s surrogates, and most prominently President Trump himself, repeatedly proclaimed lies about the election and its results, and those lies increased in frequency and intensity as January 6, 2021 approached – despite three different Wisconsin courts rejecting the Trump campaign’s legal challenges because President Trump had presented no specific evidence of misconduct or fraud by Wisconsin voters.”
The complaint continues: “While they were spreading their malicious falsehoods about a ‘rigged election’ through regular and social media and at public appearances, Johnson, Tiffany, Fitzgerald, President Trump, and many others identified in this Complaint or still unknown to the public and the Plaintiffs were also engaged in a conspiracy whose illegal objective was to hijack the Joint Session on January 6, 2021 in order to permit the presentation of knowingly false and fraudulent slates of electors to the President of the Senate — Vice President Pence — the Senate, and the House of Representatives.
The complaint alleges: “Ten fraudulent electors from Wisconsin met at the State Capitol on December 14, 2020, the date designated by law, in a room procured for them by Fitzgerald, and committed multiple crimes by preparing and signing documents that falsely asserted that they were duly and lawfully chosen electors from Wisconsin whose votes were entitled to be tallied in the Joint Session on January 6, 2021. The fraudulent electors then compounded their illegal conduct by sending their forged electoral votes to Pence in his capacity as President of the Senate, without any reservation or condition stating the truth: that the fraudulent electors were not in fact duly and lawfully chosen pursuant to Wisconsin law.
“Had Vice President Pence gone along with the plot, the conspirators would have had him unilaterally reject the legitimate electoral votes of Wisconsin and six other states for the Biden-Harris ticket and instead count the illegal, fraudulent electoral votes criminally submitted by the phony electors.”
The document describes the events on and surrounding Jan. 6, 2021, as “shameful,” adding: “After having been egged on relentlessly by the flagrant lies and distortions put forth by President Trump, Johnson, Tiffany, Fitzgerald, and their co-conspirators, known and unknown, over the previous months, thousands of people took the law into their own hands and stormed the U.S. Capitol during the Joint Session of Congress. These violent insurrectionists forced the members of the Senate and House and their staff to flee the Capitol. They caused millions of dollars in damage to the building and grounds.
“Worst of all, five people died in the violence, and more than 110 Capitol Police officers were injured. It took seven hours to remove the violent insurrectionists from the Capitol and the grounds and restore order sufficient to allow Congress to return and complete the tallying of electoral votes.”
The full complaint is here: http://fortatkinsononline.com/wp-content/uploads/2022/05/20314854589.pdf.
Arguments to dismiss
Included within a “Plaintiffs’ Brief in Opposition to Motion to Dismiss of Defendants Thomas P. Tiffany and Scott L. Fitzgerald” are arguments set forth against arguments advanced by two of the defendants as reasons for the court to dismiss the suit.
The brief cites other states in which similar suits have been brought, naming elected officials in those states who are also alleged to have participated in what the brief cites as insurrectionist behaviors associated with Jan. 6, 2021.
Among them are efforts made in the State of Georgia, where citizens have pursued legal alternatives to challenge Rep. Marjorie Taylor Greene from adding her name to an upcoming ballot.
Additionally, the brief states, on May 1, 2022, the U.S. District Court of the District of Columbia “rejected arguments advanced by the Republican National Committee (RNC) designed to thwart the congressional investigation being undertaken over the January 6, 2021 insurrection and refused to quash a subpoena issued to Salesforce, which the RNC had used to send emails between November 3, 2020 and January 6, 2021 spreading disinformation about the 2020 election.”
According to the brief: “Because Fitzgerald and Tiffany desperately wish to turn the Court’s attention away from their complicity in enabling a potential coup in 2020 and laying the groundwork for a successful one in 2024, Defendants deploy legal arguments to avoid accountability out of the gate. None of the arguments serve as a basis to dismiss this lawsuit.”
Among arguments made by defendants to have the case dismissed, the brief sets forth and address several, including the defendants’ assertion that, as stated in the brief, “Plaintiffs lack standing to pursue this case.”
The brief asserts: “Their position is inconsistent with the rules that allow citizens to pursue claims when they have suffered a particularized injury, caused by a defendant, that is redressable by the relief sought. Each of the Plaintiffs satisfy each of these requirements, because they have First Amendment rights to challenge a candidate’s ballot eligibility, and because Defendants’ insurrectionist conduct impairs Plaintiffs’ First Amendment right to engage in political persuasion.”
The brief further states: “Fitzgerald and Tiffany claim that Article 1, Section 5 of the Constitution (the “Qualifications Clause”) divests this Court of subject matter jurisdiction because only Congress is empowered to adjudicate member qualifications.”
The brief addresses the argument, noting: “This argument overlooks that Plaintiffs do not seek to expel Defendants from their current seats in Congress and ignores the role in running elections for federal office that is assigned to the states … which in this case includes the requirement of Wisconsin law that Fitzgerald and Tiffany must assert under oath in their “Declaration of Candidacy” that they are qualified to be on the ballot.”
The brief continues: “Defendants assert that this lawsuit must be dismissed because the declaratory judgment Plaintiffs seek will amount to an advisory opinion from the Court.”
The brief alleges the claim is false, stating: “This Court is best suited to answer the constitutional question presented: namely, whether the conduct alleged in the Complaint constitutes insurrection under Section 3 of the Fourteenth Amendment.
Defendants, according to the brief, “argue that the case is not ripe because Congress has not acted to expel Fitzgerald or Tiffany, and because Article I, Section 5 provides the only basis for expulsion to occur, there is nothing for the Court to adjudicate.”
Plaintiffs, the document states, “are not seeking a declaration affecting Defendants’ status in the 117th Congress. Instead, Plaintiffs ask the Court to declare that Defendants engaged in insurrection under Section 3 – which would affect only their eligibility to run for seats in the 118th Congress. Since both Tiffany and Fitzgerald are running for re-election this fall and must qualify for inclusion on the ballot in order to do so, this issue is assuredly ripe for adjudication by this Court.”
The full brief is here: http://fortatkinsononline.com/wp-content/uploads/2022/05/Dkt.-23-Plaintiffs-Brief-in-Opposition-to-MTD-by-Tiffany-and-Fitzgerald-MBC-filed-5-6-22.pdf.
A similar brief outlining opposition to arguments made by Johnson to dismiss the case is likely pending, Russler said Sunday in a phone interview with Fort Atkinson Online.
Declarations
Two of the 10 plaintiffs, both residing in Jefferson County, have shared their declarations to the court with Fort Atkinson Online.
In her declaration, DeMuth noted her personal knowledge of the following: “In addition to regularly voting in national, state, and local elections, for approximately ten years I have worked on campaigns for U.S President, U.S. Senate and House of Representatives, and Wisconsin Governor, served as co-chair for two campaigns for Wisconsin state assembly, and worked on campaigns for county board and school boards. I have canvassed thousands of homes on behalf of candidates and issues, planned or hosted campaign events, educational forums, and fundraisers, and held positions on the executive board of my county party.
“I have petitioned the government for redress of grievances on numerous occasions and in a variety of settings including public town halls hosted by my State Assembly Representatives —J. Kleefisch, B. Dittrich— State Senators — S. Fitzgerald, J. Jagler — and by meeting with these individuals at their offices or calling their staff to voice my views about legislative or public policy matters. I have testified at the Wisconsin state capitol on issues that impact my livelihood, health, and community, in association with fellow grassroots citizen groups. I have expressed my opinion through letters to the editor published in local news outlets, and recruited others to do so, on topics such as Medicaid expansion, fair wages, non-partisan redistricting, voting laws, school funding, and clean water.”
DeMuth said she was a plaintiff on the lawsuit because: “the very nature of the relationship between citizen and lawmaker demands that both parties act in good faith; I believe the actions of Senator Johnson and Representatives Fitzgerald and Tiffany in providing aid and comfort to those seeking to overturn the 2020 presidential election was a crime against our nation and a serious violation of the social contract between lawmakers and their constituents.”
Additionally, her declaration stated: “I am hearing a fervent concern that politicians are corrupt and cannot be trusted. This detracts from the essential work of understanding the choices that impact voters in the 2022 and future elections. This burden would be greatly relieved if Senator Johnson and Representatives Fitzgerald and Tiffany were disqualified from the ballot.”
In his declaration, Russler described himself as “a technical writer who often writes at the request of others.”
His declaration stated: “I’ve written commentary on the technical aspects of Supreme Court debates for the editor of “Fort Atkinson Online.” In addition, I am a swing voter who evaluates candidates for election on the evidence they provide for adequate returns-on-investment when making investment decisions with our tax dollars. Of course, I regularly vote in national, state, and local elections. I do not give “extra credit” to either side of a debate for association with a political party. My distinguishing role is as an educator of the public on technical topics. In that role, I try to assist other voters in understanding the pros and cons of possible choices and consider the policy implications of a certain path. For example, I joined a project last summer, the Wisconsin Map Analysis Project, that eventually submitted an Amicus brief to the Supreme Court of Wisconsin. I was one of the technical analysts on the team.”
Additionally, Russler pointed to his involvements “in 2020 to government requests for citizen input on Wisconsin energy initiatives.”
A version of the Wisconsin Energy Plans has recently been released by the Wisconsin Office of Sustainability,” Russler wrote, adding: “This is the kind of political role with which I am most comfortable.”
Within the declaration, Russler stated: “As I evaluated the reports of Representative Scott Fitzgerald assisting the fraudulent electors to gain access to Wisconsin government offices at the State Capitol, I believed his action did not pass the smell test. As I understand it pursuant to state and federal law, Wisconsin’s electors must gather at the Capitol at noon on the designated date to vote and sign certificates to cast Wisconsin’s 10 electoral votes. Thus, this group needed access to a location inside the State Capitol.”
The document continues: “the press was not invited. They then tried to pass these documents as legitimate, signing and submitting them to the U.S. Senate and National Archives. Then-State Senator Fitzgerald provided the group with access to the building by reserving a room for them and joined his companions in representing these fraudulent documents as legitimate to his colleagues and the public.
“As to this event, writing commentary for public media was not the most appropriate venue for educating the public on this topic. Instead, joining as a plaintiff in this litigation was the most appropriate action for a person in my role, similar to my joining the Amicus brief for the Wisconsin Supreme Court on the redistricting dispute. I believe that my role is different than that of an average, concerned citizen. I have been trained in formal analysis at great expense to the State of Wisconsin. For that reason, I sense a greater degree of responsibility to the State and to the public.”
Johnson, Fitzgerald, Tiffany
Johnson has held his U.S. senatorial seat for 11 years. He declared his candidacy for reelection in January, and will be running in the Republican primary on Aug. 9, with those winners advancing to the general election in November.
Fitzgerald represents Wisconsin’s 5th Congressional District in the U.S. House of Representatives. He assumed office Jan. 3, 2021. His term ends Jan. 3, 2023.
Tiffany represents Wisconsin’s 7th Congressional District in the U.S. House of Representatives. He assumed office May 19, 2020. Tiffany announced his candidacy for reelection in April.
Commentary, written by Russler, who is one of the 10 plaintiffs in the civil rights lawsuit, is here: https://fortatkinsononline.com/between-the-rails-a-political-stunt-gone-bad/.
File photo/public domain.
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