By Mitch Smith
A former Republican judge appointed to hear arguments on whether to disqualify former President Donald Trump from the Illinois primary ballot said Sunday that he believed Trump engaged in insurrection by attempting to remain in office after the 2020 election.
But the former judge, Clark Erickson, whose nonbinding opinion will be considered by the State Board of Elections on Tuesday, added that he believed the board did not have the authority to disqualify Trump on those grounds and that the question should instead be left to the courts.
The mixed decision was at least a symbolic setback for the former president, who has faced official challenges to his candidacy in 35 states and has been found ineligible for the primaries in Colorado and Maine. Trump, the leading Republican candidate for president, is still likely to appear on the primary ballots in both of those states as the U.S. Supreme Court considers an appeal of the Colorado ruling.
In Illinois, at least five of the eight members of the Board of Elections would have to vote Tuesday to remove Trump for him to be struck from the ballot. The appointed board is made up of four Democrats and four Republicans. Their decision can be appealed to the courts before the March 19 primary.
The Illinois challenge, like those in other states, is based on a clause of the 14th Amendment of the U.S. Constitution that disqualifies government officials who “engaged in insurrection or rebellion” from holding office.
At a hearing Friday in downtown Chicago, lawyers for residents objecting to Trump’s candidacy accused the former president of insurrection and played footage from the riot at the U.S. Capitol on Jan. 6, 2021. Lawyers for Trump denied the allegation and argued that, in any case, the constitutional clause in question did not apply to the presidency.
Trump’s campaign has described the multistate effort to disqualify him as partisan and anti-democratic. A spokesperson for the campaign and a lawyer for Trump did not immediately respond to requests for comment Sunday.
In his written opinion, Erickson recommended that the board dismiss the objection to Trump, finding that Illinois Supreme Court precedent prevented the Elections Board from engaging in the “significant and sophisticated constitutional analysis” necessary to reach a ruling. But if the board disagreed with him on the jurisdictional question, Erickson said he believed they should disqualify Trump from the primary ballot.
The board’s general counsel is also expected to make a formal recommendation before the hearing. A copy of Erickson’s opinion was published by lawyers for residents who objected to Trump. The document’s authenticity was confirmed by Bernadette Matthews, the executive director of the Board of Elections.
Erickson, who reviewed the findings of the Colorado Supreme Court and the U.S. House committee that investigated the Capitol riot, laid out the 14th Amendment case against Trump in detail.
“The evidence shows that President Trump understood the divided political climate in the United States,” Erickson wrote, adding that he “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 said the former president “understood the context of the events of Jan. 6, 2021, because he created the climate” and that “he engaged in an elaborate plan to provide lists of fraudulent electors to Vice President Pence for the express purpose of disrupting the peaceful transfer of power following an election.”
During the hearing last week, lawyers for Trump emphasized that their client made social media posts calling for peace after the riot had started. Erickson said he found those posts unconvincing and believed they were “the product of trying to give himself plausible deniability.”
“Perhaps he realized just how far he had gone, and that the effort to steal the election had failed because Vice President Pence had refused to accept the bag of fraudulent electors,” Erickson added.
Erickson, a retired Republican state judge from Kankakee County, oversaw the hearing Friday in a nondescript conference room in a government office. About 20 people, many of them lawyers or journalists, were in the room.
In an interview years ago with The Daily Journal, a newspaper in Kankakee, a small city 60 miles south of Chicago, Erickson said he tried to bring a nonpartisan approach to the bench.
“We are a political society, and the manner in which we choose judges in the state system is through political elections,” he told the newspaper, adding that “that’s a little awkward because clearly politics can’t have anything to do with our job after we’re elected.”
Ron Fein, the legal director of Free Speech for People, which helped bring the objections in Illinois and in several other states, called Erickson’s opinion about Trump’s conduct “highly significant.”
“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 in a statement.
Illinois, a Democratic stronghold, is not expected to be competitive in November’s general election. But it is a delegate-rich state where the primary election could help Trump lock down the Republican nomination.
Many expect the U.S. Supreme Court to ultimately settle the question of Trump’s eligibility. Oral arguments in the Colorado appeal are scheduled for Feb. 8.
In the meantime, with primary season underway and Trump holding a commanding lead on the Republican side, challenges to the former president’s eligibility remain unresolved in more than 15 states.