Ashcroft: Barring Trump from state ballots sets dangerous precedent

The Supreme Court of the United States will hear oral arguments in Trump v. Anderson next month, giving the Court an opportunity to correct the egregious decision of the Colorado Supreme Court to remove former President Donald Trump from their primary ballot.

Another Democratic state, Maine, followed Colorado’s lead when their secretary of state blocked Mr. Trump from the ballot, while several other Democratic states have floated the idea.

The lack of due process and standard for removing a candidate from the ballot creates a dangerous situation and without action from the Court, may be the last proverbial straw to be placed on our already strained election process.

The Colorado case was filed under state election law to prohibit the secretary of state from placing Mr. Trump on the primary ballot due to his alleged insurrection. While insurrection is a criminal charge, the Colorado court afforded Mr. Trump few of the elements of due process required for such a prosecution. There was no jury trial, reduced evidentiary standards, an accelerated hearing, and a reduced burden of proof.

The Colorado Supreme Court swiftly decided Mr. Trump was guilty of a felony, because they needed a pretext to remove him from the ballot. It’s worth noting that even though all seven justices are Democrats, the Court ruling to remove him was split 4-3.

The case in Maine is even worse. There, an unelected secretary of state with no legal training decided through an administrative hearing that Mr. Trump should be removed from the Maine primary ballot. When Mr. Trump’s legal team objected to the fact that they didn’t have an opportunity to see some evidence prior to the hearing, the secretary openly acknowledged that under the Maine Administrative Procedure Act, there is no requirement that evidence be shown prior to a hearing.

And months before the hearing, the secretary had tweeted that January 6, 2021, was an insurrection, leading many to conclude that she had already arrived at a decision prior to the hearing and was not an unbiased trier of fact.

If these states’ decisions are left unchecked, the ramifications on our electoral processes will be transformative.

Consider a legal landscape whereby state election officials are allowed to unilaterally decide which candidates are fit to be on the ballot, without having to follow due process safeguards. In such a scenario, the lack of a standard becomes the new standard.

In a world where state election officials are the sole arbiters of ballot access, what will keep officials from short-circuiting the electoral process à la Maine and ensuring their preferred candidate wins by making that the only option on the ballot? And once this tactic is applied at the presidential level, what is there to stop it from also applying to congressional and state races?

Moreover, consider the quandary for election officials in conservative states. In 2013, during Barack Obama’s presidency, Senate Democrats ignored Republican objections and discarded the 60-vote filibuster rule in order to ease the confirmation process for federal circuit court judicial nominees. Once Republicans regained control of the chamber in 2017, they played by the same new rules and lowered the vote threshold to 51 to confirm President Trump’s nominees to the U.S. Supreme Court. When the rules of the playing field are altered, what is the other team to do?

One doesn’t need a crystal ball to see where the decisions in Colorado and Maine will lead our country. It is imperative that the U.S. Supreme Court reinforce the rule of law upon which we rely to run fair elections.

I led a group of 10 other states filing an amicus brief with the Court calling on them to reverse the Colorado Supreme Court’s decision and give us clear guidelines by which to run elections. Anything else will likely have far reaching consequences and will further erode confidence in our election process.

It is not my intent to escalate the chaos created by Colorado and Maine but to point out the incredible risk facing our nation if this reckless behavior becomes the norm.