Hearing officer agrees Trump engaged in insurrection, but tells state elections board it’s up to courts to decide former president’s place on ballot

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A state elections hearing officer agreed with objectors that former President Donald Trump “engaged in insurrection” at the deadly Jan. 6, 2021, riot at the U.S. Capitol, but said he believed it is up to the courts and not the State Board of Elections to decide whether to remove him from the March 19 Illinois primary ballot.

The nonbinding recommendation from Clark Erickson, a retired Republican judge from Kankakee County, comes ahead of the state election board’s meeting Tuesday to certify the names that will appear on the primary ballot.

The objection to having Trump on the ballot was filed by five Illinois voters and backed by Free Speech for People, a group that has been behind efforts to have Trump removed from ballots across the nation under provisions of what is known as the “insurrection act” of the 14th Amendment to the U.S. Constitution.

Section 3 of the post-Civil War era amendment says 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.

Erickson said previous Illinois Supreme Court rulings bar the State Board of Elections from acting on candidate disqualifications based on constitutional analysis. Because of those rulings, he said, the board should reject the Trump ballot objection.

“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. “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.”

But if the board rejects his recommendation, Erickson said the board should remove Trump’s name from the primary ballot based on evidence presented at a hearing last Friday that he said “proves by a preponderance of the evidence that President Trump engaged in insurrection, within the meaning of Section 3 of the Fourteenth Amendment.”

“The evidence shows that President Trump understood the divided political climate in the United States. He understood and exploited that climate for his own political gain by falsely and publicly claiming the election was stolen from him, even though every single piece of evidence demonstrated that his claim was demonstrably false,” Erickson wrote.

“He used these false claims to garner further political support for his own benefit by inflaming the emotions of his supporters to convince them that the election was stolen from him and that American democracy was being undermined. He understood the context of the events of Jan. 6, 2021 because he created the climate. At the same time he engaged in an elaborate plan to provide lists of fraudulent electors to Vice President (Mike) Pence for the express purpose of disrupting the peaceful transfer of power following an election.”

Erickson specifically cited as “absolutely damning” to Trump’s denial of participating in an insurrection “the tweet regarding Mike Pence’s lack of courage while (Trump) knew the attacks were going on.”

Erickson said Trump’s actions were “inexplicable.”

Trump and his campaign have labeled ballot challenges under the 14th Amendment as efforts by “Radical Left Communists, Marxists, and Fascists, to again steal an Election.”

For months, as 14th Amendment challenges to Trump’s candidacy were filed around the nation, the Illinois State Board of Elections’ legal interpretation has been that the board lacked the authority to decide questions of constitutional interpretation.

Marni Malowitz, the board’s general counsel, said she agreed with Erickson’s initial finding that the board lacked jurisdiction to rule based on constitutional issues. But in a list of options to board members, she also suggested they could issue a narrow ruling that keeps Trump on the ballot by rejecting an objection that he “knowingly” filed a false statement of candidacy attesting that he met the qualifications for the office of president.

The eight-member elections board is made up of four Democrats and four Republicans, with a simple majority required to take action. A tie vote on the question of Trump’s qualifications would leave him on the ballot, pending a likely court appeal.

Already, the U.S. Supreme Court has agreed to hear oral arguments on Feb. 8 in an appeal of a 4-3 ruling by the Colorado Supreme Court in December that Trump is disqualified from holding the office of the presidency and blocking his name on the state’s primary ballot. On Dec. 28, Maine Secretary of State Shenna Bellows, the state’s top election official,ruled Trump ineligible for that state’s ballot. That decision is being appealed in state court.

Illinois is among 10 states where objections to Trump’s qualifications are pending. The Illinois objection filed with the State Board of Elections had largely been viewed as a vehicle to move the issue into the Illinois courts.

A separate hearing officer, Springfield election attorney David Herman, also recommended the board reject three objections seeking to remove President Joe Biden’s name from the primary ballot.

The Biden objectors included neo-Nazi and failed past GOP congressional candidate Arthur Jones of Lyons and Peggy Hubbard of Belleville, an internet provocateur and conspiracy theorist who has twice lost bids for the GOP nomination for the U.S. Senate.

One objection contended Biden was ineligible because he used an out of state notary on his candidacy papers, even though that is allowed by law.

The objections from Jones and Hubbard contended Biden was disqualified by the Constitution’s “insurrection clause” under its provisions on providing “aid and comfort” to the nation’s enemies because of his border and immigration policies.

“Those that disagree with the immigration policies of the administration of a sitting president are not able to shape a narrative to turn disputed immigration policies and the alleged impact of those policies into a constitutional basis for preventing a candidate to be placed on the ballot,” Herman said.

Ironically, Herman also said he believed the “insurrection clause” being used to challenge both Biden and Trump did not apply to the office of president because it “is not listed in the hierarchy list of offices set forth in and governed” by the amendment.