Former Republican President Donald Trump participated in the fatal Jan. 6th insurrection at the U.S. Capitol, but it’s the courts — and not the State Board of Elections — that should decide whether to remove him from Illinois’ primary ballot, a state hearing officer recommended Sunday.
The Illinois objection to Trump’s candidacy was brought by five state voters, a national voting-rights organization involved in trying to keep Trump off the ballot and two Chicago law firms.
The case is a part of a multi-state strategy around the country to bar Trump from appearing on the 2024 ballot based on language in the 14th Amendment that prohibits insurrectionists from seeking public office. The U.S. Supreme Court is reviewing a Colorado Supreme Court ruling to bump Trump from that state’s ballot based on the 14th Amendment.
The Illinois State Board of Elections on Friday held a hearing on the issue, with attorneys for Trump and the citizens seeking to bar him from the ballot presenting arguments to a hearing officer, Clark Erickson, a retired, long-time judge from Kankakee County who is a Republican.
Erickson’s written recommendation, obtained by WBEZ, was submitted to the state election board, which will hold a hearing on Tuesday to consider what to do next.
Erickson’s recommendation was that the courts should decide whether the 14th Amendment bars Trump’s candidacy. But he also delivered a scathing assessment of Trump’s involvement in the insurrection, writing the former president “fanned the flames” that led to the breach of the Capitol and attempts to fraudulently undo the 2020 presidential election.
“[Trump] does not dispute that he knew violence was occurring at the capitol.. He understood that people were there to support him,” Erickson wrote. “Which makes one single piece of evidence, in this context, absolutely damning to his denial of his participation: the tweet regarding [Vice President] Mike Pence’s lack of courage while [Trump] knew the attacks were going on is inexplicable,” Erickson continued.
“[Trump] knew the attacks were occurring because the attackers believed the election was stolen, and this tweet could not possibly have had any other intended purpose besides to fan the flames,” Erickson wrote.
Still, the retired judge ultimately held that the constitutional dispute over how to apply the 14th Amendment needs to be resolved in the courts and not by the state elections board on an expedited basis.
“It is impossible to imagine the Board deciding whether Candidate Trump is disqualified by Section 3 without the Board engaging in significant and sophisticated constitutional analysis,” Erickson wrote, which he noted the board is barred from doing.
“All in all, attempting to resolve a constitutional issue within the expedited schedule of an election board hearing is somewhat akin to scheduling a two-minute round between heavyweight boxers in a telephone booth,” he wrote.
Erickson concluded his recommendation with a twist — while he wrote that he thought the case should be dismissed in Illinois, he also wrote that if the board disagreed with him, then the board should “find that the evidence presented at the hearing…proves by a preponderance of the evidence that President Trump engaged in insurrection, within the meaning of Section 3 of the Fourteenth Amendment, and should have his name removed from the March, 2024 primary ballot in Illinois.”
A spokesman for the voting rights organization that was part of the Illinois objection praised the hearing officer’s determination, effectively, that Trump participated in an insurrection. The group also held out hope that either the state elections board or Illinois’ courts would use that finding to block Trump from Illinois’ ballot.
“This decision by a Republican judge that Donald Trump engaged in insurrection and is disqualified from office under the Constitution is highly significant,” said Ron Fein, legal director of Free Speech For People, who is pressing the case along with the Hughes Socol Piers Resnick & Dym law firm and Illinois election lawyer Ed Mullen.
“We expect that the board and ultimately Illinois courts will uphold Judge Erickson’s thoughtful analysis of why Trump is disqualified from office, but — with the greatest respect — correct him on why Illinois law authorizes that ruling,” Fein said.
The eight-member governing board of the State Board of Elections, which meets Tuesday, is split equally between Democrats and Republicans.
That means setting aside the hearing officer recommendation and striking Trump from the March 19th primary ballot would require unanimity among the board’s four Democratic members and at least one Republican member breaking ranks against Trump.
If that long-odds outcome doesn’t materialize, the objectors likely would move the dispute into circuit court. That would launch a legal odyssey that could land in the lap of the Illinois Supreme Court, assuming the U.S. Supreme Court doesn’t offer guidance on the question earlier. Illinois’ high court is controlled by Democrats
by a 5-2 majority.
The Trump campaign said Sunday it intended to withhold comment until after the expected State Board of Elections decision Tuesday.
Dave McKinney covers Illinois government and politics for WBEZ and was the long-time Springfield bureau chief for the Chicago Sun-Times.
