Hearing Officer Says Donald Trump Should Be Removed From Illinois Ballot, but It’s a Decision for the Courts

Rioters loyal to President Donald Trump rally at the U.S. Capitol in Washington on Jan. 6, 2021. (AP Photo / Jose Luis Magana, File)Rioters loyal to President Donald Trump rally at the U.S. Capitol in Washington on Jan. 6, 2021. (AP Photo / Jose Luis Magana, File)

Election officials should vote Tuesday to allow President Joe Biden and former President Donald Trump to run in Illinois’ presidential primary contest, hearing officers and the state election board’s top lawyer recommend.

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Groups of voters had requested Biden and Trump be knocked off Illinois’ March 19 primary ballot.  Objectors want Trump gone because they say he instigated an insurrection on Jan. 6, 2021, in violation of the 14th Amendment and therefore is ineligible to run for president.

Challengers to Biden’s candidacy argued problems with his paperwork to get on the ballot, and that he’s unqualified because his immigration policy is tantamount to aiding an enemy of the United States, in breach of the federal constitution.

Backers and challengers argued their cases during hearings on Friday, and adjudicators’ non-binding opinions were released Sunday.

CAN TRUMP BE ON THE BALLOT?

In Trump’s case, hearing officer Clark Erickson – a retired Republican judge from Kankakee County – found that the former president’s role in the attack on the U.S. Capitol are credible and should make him ineligible to run for president in Illinois.

But Erickson said that’s not a question the Illinois State Board of Elections is equipped to answer, so they should bypass weighing in on it.

“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,” Erickson wrote in a Sunday opinion. “The (Illinois) Election Code is simply not suited for issues involving constitutional analysis. Those issues belong in the Courts.”

The U.S. Supreme Court is scheduled to hear arguments on Feb. 8 based on Colorado’s high court finding that Trump can’t run in that state because he’s an insurrectionist.

Erickson said that Colorado’s process gave more time for legal teams to make their arguments, while Illinois’ rapid schedule for ballot objections doesn’t allow for that.

Still, he wrote, if members of Illinois’ elections board ignore his overriding recommendation and they decide to get into the Jan. 6 question, they should find that evidence from Friday’s 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.”

Erickson said “even when giving the Candidate (Trump) the benefit of the doubt whenever possible,” the objectors’ claims are credible that Trump exploited political division to amplify false claims that the 2020 election was stolen from him.

“Candidate does not dispute that he knew violence was occurring at the capitol. He understood that people were there to support him,” Erickson wrote. “While it is true that subsequently, but not immediately afterwards, Candidate tweeted calls to peace, he did so only after he had fanned the flames. The Hearing Officer determines that these calls to peace via social media, coming after an inflammatory tweet, are the product of trying to give himself plausible deniability.”

CAN BIDEN BE ON THE BALLOT?

Biden’s place in Illinois’ Democratic primary faces several challenges.

One attempt argues that his petitions should be found invalid because they were notarized in Washington D.C., not Illinois.

Hearing officer David Herman, a Springfield attorney, overruled that objection based on case law.

Another attempt seeks to remove Biden from the ballot on the basis that he falsely swore in his statement of candidacy that he’s qualified to run for president, because he “provided aid or comfort to the enemy” in violation of the 14th Amendment, citing as evidence Biden policies on matters like immigration.

Herman found that sort of constitutional question is outside the board’s purview.

“The question, then, is whether the Board can decide whether candidate Biden is

disqualified by Section Three of the Fourteenth Amendment, without embarking upon a

constitutional analysis,” Herman wrote. “It simply cannot. It is impossible for the Board to decide whether Candidate is disqualified by Section Three without engaging in a significant and sophisticated constitutional analysis. These constitutional issues belong in the Courts.”

Herman also recommended board members should side with Biden even if they decide to weigh whether Biden’s policies equate to aiding an enemy, because he wrote, both because objectors’ challenge is based on opinion and not fact, and because there is no evidence Biden abetted an enemy.

“Factual allegations setting forth the dislike of Candidate’s policies and his performance while in office are not a factual basis to disqualify a Candidate from the ballot,” Herman wrote. “Asserting conclusory and causally dubious connections to those disliked policies also fail to factually establish any basis to disqualify Candidate. Candidate’s immigration and border security policies do not equate to providing aid or comfort to the enemies of the United States.”

On the merits, Herman wrote, “There was simply no evidence presented Candidate provided aid or comfort to the enemy and as a result his Statement of Candidacy was falsely sworn.”

“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,” he wrote. “A disagreement as to immigration policies is simply not enough, there needs to be more.”

A third challenge to Biden, filed by the America First Committee, relies on similar arguments.

Art Jones, a perennial candidate who was condemned by the state GOP as a neo-Nazi in 2018 when he ran as a Republican for Congress, was the sole party to that challenge who spoke at Friday’s hearing.

Herman said the case should be dismissed foremost because objections can only come from individual voters, not political committees. While Jones was present, the filing didn’t include his or other voters’ addresses – only the P.O. Box for America First.

“Failure to provide their residence addresses and state their interests in filing the objection, the Hearing Officer explains, are fatal to their objection petition,” Herman wrote.

Herman also said that objection should be dismissed because the challenge is based not on issues like whether nomination papers and petitions were properly filed, but rather “Objectors’ petition objects to the President’s policy decisions, outside the scope of an electoral board’s duties.

“Objector Jones admitted he was not objecting to Candidate’s (Biden’s) nomination papers, and his objection was based upon ‘moral grounds,’” Herman wrote.

WHAT’S NEXT?

Illinois’ elections board – which has an even number of Republicans and Democrats – meets Tuesday morning to make its decision.

They’ll go into the meeting with recommendations from two experts: The hearing officer assigned to each specific case, and the board’s general counsel, who weighs in on the hearing officers’ opinion.

For each of the questions surrounding Biden and Trump, the election board’s top attorney substantially agreed with the hearing officers.

General Counsel Marni Malowitz wrote that she had some differences with the hearing officers’ lines of thinking, but she drew the same ultimate conclusions. 

Her biggest disparity in thinking is in the Trump’s case, because she wrote, she wanted to give alternatives to Erickson’s recommendation in order to reduce the possibility that courts send the matter back to the state elections board.

She said there’s no need to get into constitutional questions about Jan. 6 because the matter can be resolved more simply, based on state law.

Malowitz wrote that the state elections board should put Trump on the ballot because he did not knowingly or willingly make a false statement of candidacy, such as those that would meet the threshold for invalidating his place on the primary ballot.

Whether or not Trump violated Section 3 of the 14th Amendment because of Jan. 6, Malowitz wrote that evidence shows Trump didn’t believe he did, and that objectors provided no evidence to the contrary.

“Throughout this proceeding, Candidate (Trump) has consistently denied that he engaged in insurrection and violated Section 3,” Malowitz wrote. “Rather, he has argued he is legally qualified to hold the office of President and did not swear his Statement of Candidacy falsely.”

Follow Amanda Vinicky on Twitter: @AmandaVinicky


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