Proving Candidate Eligibility in Illinois: A New Intent Requirement?
November 18, 2024
By: Matthias Connelly
Note: This post is the part 2 to a previous post by the same author linked here: Chaos or Federalism: Section 3 Enforcement in Illinois
The Supreme Court’s decision in Trump v. Anderson did not settle all state-wide litigation relating to Section 3 challenges against former President Trump’s eligibility for the presidency. The court’s ruling that only Congress is empowered to enforce the 14th Amendment’s ban against insurrectionists from holding federal office foreclosed ballot challenges in Colorado, Maine, and Illinois. But thanks to an unprecedented interpretation of Illinois law made in the course of that state’s proceedings, important questions bearing on future candidate eligibility requirements are still unanswered.
Before the Appellate Court of Illinois is an action requesting it rule on a decision of its State Board of Elections, the body that first heard challenges to Trump’s ballot eligibility. At issue in the original complaint was whether Trump should be disqualified from the presidency under Section 3 of the Fourteenth Amendment, framed consistent with state law, as whether Trump falsely swore on his Statement of Candidacy by affirming his eligibility for the presidency in spite of his involvement in the allegedly insurrectionary events of January 6, 2021. The Board decided to keep Trump on the primary ballot and was later reversed by the Illinois Circuit Court.
In its decision, the Board ruled that the voter-objectors had “not met their burden of proving by a preponderance of the evidence that Trump’s Statement of Candidacy [was] falsely sworn.” The Board’s finding adopted the legal conclusion of the Board’s General Counsel that Trump’s “sworn statement on his Statement of Candidacy that he is ‘legally qualified’ for office [was] not knowingly false.” According to both the General Counsel and the Board, this meant that Trump did not violate the Illinois election code and his nomination papers could not be invalidated.
As Caryn C. Lederer, the lead attorney for the Illinois ballot challenge, put it, the Board’s decision “is a significant outlier” at odds with precedent and practice. This is because, as her brief argues, “electoral boards must ensure that candidates actually are qualified for office—not whether they may subjectively believe they are qualified.” Indeed, this new requirement to prove a candidate’s mental state would handicap the Board in protecting the legitimacy of Illinois elections by ensuring candidates satisfy the required qualifications. If this decision stands, any future candidate could theoretically claim that they did not “knowingly” lie on their Statement of Candidacy, for example, by denying that they knew of the requirement in the first place and point to this case for support. Costly and time intensive litigation would necessarily follow.
The Board argues that the court should dismiss the appeal because the challengers “have not clearly shown” that a future candidate lying about their disqualification under Section 3 “is likely to recur,” or that outside of Section 3 objections, there is any likelihood that candidates will argue that their certifications were not “knowingly false.” If they do, the Board asserts, the “unique complexities” surrounding Section 3 disqualification render such hypotheticals inapposite. Mootness aside, because the Board did not have the authority to decide questions of Section 3 disqualification, it argues that the court should simply void the Board’s decision and dismiss any further actions requesting administrative review.
The Board’s arguments are unconvincing for a few reasons. First, whether or not the Board originally lacked jurisdiction to determine Trump’s eligibility under Section 3, the finding that his Statement of Candidacy was not “knowingly false” will remain an interpretation of Illinois law that future candidates defending themselves against objections may rely on. In effect, this is an invitation for candidates to ignore candidacy requirements and maintain that they didn’t know any better when challenged. If future challengers do not subpoena the notary public or other witnesses “regarding any admissions . . . indicating [the candidate’s] state of mind” when signing their Statement of Candidacy, then those candidates will presumably point to the Board’s decision faulting the present challengers for not doing so in this case. And even if future challengers do take those steps, but still cannot prove that the candidate “knowingly” lied about their qualifications, this very same question will have to be answered by the courts in those proceedings.
So why not answer it now?
The same can be said for the Board’s assertion that the issue before the court is moot. State law provides that important election law questions can be decided even after an election has passed. The availability of the “I did not knowingly lie” argument does not depend on that argument being used in defense against a Section 3 objection. And it is not obvious that the “unique complexities” surrounding a Section 3 objection would render the “I did not knowingly lie” argument ineffective against other objections. This is exactly what the objectors are urging the appellate court to clarify, and it is a matter of significant public concern that the court do so.
It stands to reason that any candidate subject to an eligibility challenge will marshal every non-frivolous argument in their defense. As it stands, the decision by the Board in Trump’s disqualification proceeding provides a defense that is unsound and unsupported by the case law but is nevertheless non-frivolous. The Appellate Court of Illinois should weigh in on the matter now, before other candidates can cite it to undermine election integrity.