Use of 14th Amendment to keep Trump off 2024 ballot still under debate in Illinois

CHICAGO — Lawsuits have been filed in several states seeking to block former President Donald Trump from appearing on next year’s election ballots, contending his actions in the Jan. 6, 2021, insurrection at the U.S. Capitol constitutionally disqualify him from holding the presidency again.

In deep blue Illinois, however, Trump’s opponents and state officials are taking a more cautious approach.

Several legal experts say they believe any lawsuit seeking to prevent the Illinois State Board of Elections from placing Trump’s name on the GOP primary ballot or object to his candidacy would be premature prior to the two-day filing period for petitions for presidential candidates on Jan. 5-6.

And even after that, there are myriad legal and political issues surrounding a potential challenge of Trump’s candidacy in Illinois.

“We’re in a lot of uncharted territory here,” said Matt Dietrich, spokesman for the state’s election board.

At issue is Section 3 of the 14th Amendment. It says that those who have taken an oath to uphold the Constitution “as 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,” shall not be able to serve in Congress or “hold any office, civil or military” if they have engaged in “insurrection or rebellion” against the Constitution.

Congress can lift the prohibition by a two-thirds vote in each chamber.

Ratified in the years after the Civil War, the insurrection clause was designed to prevent secessionists from returning to government once Southern states rejoined the Union.

What was once viewed as a long-shot effort backed by liberal groups to use the insurrection clause to prevent another Trump presidency has gained traction, as some leading conservative law professors have agreed that the provision makes the former president ineligible to serve as a result of his actions on Jan. 6.

In August, Professor William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas in St. Paul, Minnesota, both active in the conservative, originalism-based Federalist Society, wrote a 126-page paper arguing the section should be enforced by every official who determines qualifications to hold office, and that it should disqualify Trump from seeking the presidency.

“The bottom line is that Donald Trump both ‘engaged in insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment,” the professors wrote in the paper, to be published in an upcoming edition of the University of Pennsylvania Law Review.

The authors’ position was backed in an Aug. 19 article in The Atlantic by J. Michael Luttig, a conservative former judge for the U.S. Court of Appeals, and Laurence Tribe, a liberal law professor.

But one initial supporter, Northwestern University law professor Steven Calabresi, a co-founder of the Federalist Society, reversed his position after being won over by a Wall Street Journal opinion piece making an argument to the contrary, according to The New York Times. The legal issue in that argument is whether the amendment’s provisions affect someone previously elected president.

Liberal groups have taken the lead in 14th Amendment lawsuits filed in Colorado and Minnesota state courts, two states that supported Joe Biden over Trump in 2020. A judge has set the Colorado case for hearing on Oct. 30 while the Minnesota case was filed on Sept. 12.

A federal lawsuit also has been filed in Virginia, while a Florida lawsuit was dismissed at the end of August by a federal judge who ruled that “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”

But in September of last year, a New Mexico state judge removed Jan. 6 rioter Couy Griffin, who was convicted on federal trespassing charges, from his elected position as a county commissioner as the result of a lawsuit filed on 14th Amendment grounds. It marked the first time a judge has formally ruled that the events of Jan. 6 were an “insurrection.”

Of the hundreds arrested, prosecuted and convicted for events at the Capitol that day, disrupting the Electoral Vote count that made Biden president, the most serious charge has been seditious conspiracy. That is defined as an act involving two or more people aimed at overthrowing the government or hindering the execution of its laws.

In December, the bipartisan House committee that investigated the events of Jan. 6 recommended that Trump be barred from holding future office under the 14th Amendment, and that he face criminal prosecution for acts including assisting, aiding or comforting an insurrection

Trump was impeached on a charge of “incitement of insurrection” in the aftermath of Jan. 6, but he was acquitted by the Senate.

Trump also has been indicted on federal charges, including conspiracy to obstruct an official proceeding and defraud the United States. He has pleaded not guilty to the Jan. 6-related federal charges as well as more expansive state charges in Georgia.

On his Truth Social network earlier this month, he contended that the 14th Amendment lawsuits are “just another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists, to again steal an Election.”

The charges against Trump do not include insurrection. That could be noteworthy, according to Andrew Raucci, a prominent former election attorney who was a member of President George W. Bush’s legal team in Florida in the contested 2000 election against Al Gore.

“What it comes down to is who makes the decision that insurrection was committed and under what standard of proof,” Raucci said. “Normally, in a civil proceeding it’s a preponderance of the evidence. In a criminal proceeding, it’s beyond a reasonable doubt.”

“The question is, how do you determine the disqualification?” he asked.

Democratic Attorney General Kwame Raoul, Illinois’ top legal officer, acknowledged he has been asked to look into a 14th Amendment challenge to Trump.

But he said the insurrection question would have to be answered first, and that his office will not be the one to address that issue.

“There’s a lot of proceedings that are going on revolving around the factual questions that would give rise to this notion of an action based on the 14th Amendment. And, as in all cases, you don’t jump to the conclusion before they’ve been tried,” Raoul said.

“I, as chief legal officer, I don’t get to declare conclusions of fact, right? I don’t get to declare that an act of insurrection has occurred,” he said. “And I’m not naive that if I were to file such a lawsuit, that it would be delayed anyway, because there are ongoing cases.”

In most states, the chief election authority is the secretary of state. But in Illinois, that power is vested in the State Board of Elections. The board has the primary say on whether a candidate has fulfilled the statutory qualifications to appear on the ballot, and certifies the final ballot that goes to voters.

In the past, the eight-member board — made up of four Democrats and four Republicans — has, after a hearing process, removed prospective candidates from the ballot for issues including failing to meet residency requirements or filing insufficient petition signatures after objections are filed. The board’s rulings can be appealed in court.

But in a letter drafted by Jordan Andrew, the board’s deputy general counsel, to respond to questions about using the 14th Amendment to keep a candidate off the ballot, the board said the disqualification issue is “beyond the authority” of the agency and is one for the courts to decide.

The board cites a 2007 Illinois Supreme Court decision as limiting its “scope of inquiry to determining whether nomination papers comply with the provisions within the Election Code.”

The case it cites involves a Chicago Board of Elections decision that determined a statutory ban on ex-felons running for office was unconstitutional. The state’s highest court ruled that election boards do not have the authority to declare a state law unconstitutional and reinstated the ban, which prevented former Ald. Ambrosio Medrano, convicted of federal felony extortion, from trying to rejoin the City Council.

Among the nominating papers that are within the board’s purview, is a signed and notarized statement of candidacy, in which the candidate attests “that I am legally qualified … to hold such office.”

A 1972 federal court decision that predates the creation of the State Board of Elections found that the state, acting on a candidacy objection, properly removed the name of a Socialist Party candidate for president because she did not meet the constitutional requirement of being at least 35.

That federal court decision made optional what had been a mandatory filing of a signed and notarized loyalty oath, in which the candidate attests that “I do not directly or indirectly teach or advocate the overthrow of the government of the United States or of this State or any unlawful change in the form of the governments thereof by force or any unlawful means.”

Thomas Bowen, a veteran Democratic political consultant, said he personally believes a 14th Amendment challenge should be mounted in Illinois — even while acknowledging that Trump’s name on the ballot in a state he has lost twice by 17 percentage points could drive Democratic turnout in 2024.

“It would be helpful for Democrats in Illinois to continue to have our punching bag, but we would gladly give that up for the safety of the country and the future of democracy,” Bowen said. “I think Democrats in Illinois would gladly have a court determination that he isn’t eligible for the crimes he committed against the people so that the Supreme Court would review it.”

Bowen acknowledged there are questions among Democrats about pursuing an arcane section of the Constitution.

But he pointed to the success of one Illinois politician who began his electoral career by using electoral challenges to clear the field of Democratic primary opponents before winning his seat in the state legislature in 1996.

“There’s a lot of hand wringing about should the law be used to the fullest extent possible in order to win a campaign,” he said. “And all we should do is look to the guidance of a young state senator named Barack Obama.”

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