The following is a transcript of an interview with CBS News election law contributor David Becker, founder of the Center for Election Innovation & Research, that aired on Dec. 31, 2023.
MARGARET BRENNAN: We turn now to the 2024 election. The Supreme Court is under growing pressure to quickly resolve the question of whether former President Trump is eligible to serve as president. After two states, Colorado and Maine have moved to strike him from the Republican primary ballot for allegedly supporting an insurrection. For more, we turn to CBS News election law contributor David Becker, the founder of the Center for Election Innovation and Research. David, it’s always good to have you here to cut through the politics on this. Both of Maine senators, an independent and a Republican, said that they disagreed with this, even though they both personally voted to convict Trump in that Senate trial that evolved the allegation that he helped to carry out an insurrection. Do you think that this decision to try to remove him from the primary ballot in Maine will stand up in court?
DAVID BECKER: Well, it’s- it’s a big question. The Supreme Court has never resolved this issue, especially with regard to a president about what engaging in insurrection means under the 14th Amendment of the Constitution. Now, of course, as you just mentioned, both men- senators from Maine and a majority of the U.S. Senate, including seven Republican senators, voted to disqualify Donald Trump from the presidency in February of 2021, as did the majority of the United States House, including 10 Republican members of the House. So it’s clear that this is an open question. There’s legitimacy to the question. And it has to be resolved by the United States Supreme Court, they are the final arbiter of what the United States Constitution means. And this 14th amendment still exists. It might be inconvenient, but it exists and it has to have meaning. It doesn’t say convicted of insurrection, it says engaged in insurrection. And we’ve seen it applied in other offices as in New Mexico just last year, to someone who was not convicted of insurrection, someone who was convicted of criminal trespass against the Capitol on January 6.
MARGARET BRENNAN: Interesting, because the Special Counsel, Jack Smith, has not invoked insurrection in his federal case against the former president. In terms of what happened in Colorado, which was the first state to try to do this, to remove Trump from the primary ballot. He- in Maine, Chris Christie is not on the primary ballot. In New Hampshire, Joe Biden is not on the primary ballot. So does any of this really matter? I guess is the question.
BECKER: Well, I think it might matter. And certainly we need this resolved, because Donald Trump may very well end up being the nominee. And it’s important to resolve this as quickly as we can and on the merits, so that the Republican party knows if it has a qualified nominee so that election officials can print their ballots, which has to be done well in advance, so the voters know what the choices are. But as you point out, it’s not anti-democratic, per se, to disqualify someone from the ballot. There are- everyone under 35 is disqualified from being the President of the United States. Anyone who is not a natural born citizen, for instance, Governor Schwarzenegger, former Governor Schwarzenegger of California is not eligible to be president, Barack Obama and George W. Bush aren’t eligible to be president, because they’ve served two full terms. So this is working through the process. This is the beginning of that process. And fortunately, whether you agree with it or not, this process is moving quickly. And the Supreme Court now has it at least in reference to the Colorado case. And hopefully, they’ll recognize and I think they will recognize the importance of them ruling clearly and quickly on this issue.
MARGARET BRENNAN: So Republican Representative Thomas Massie of Kentucky who endorsed Governor DeSantis was out there yesterday on the campaign trail, and he said, “Congress is the ultimate arbiter of whether we recognize electors from the state or not.” He said, “I could be inclined to not recognize electors from the States” because he doesn’t like what they’re trying to do here. Can he? Can he do that?
BECKER: Well, first of all, as we saw in 2021, on January 6, Congress can’t just decide to throw out the results of an election they don’t like. Members of Congress aren’t gonna like the results in every single year, but that’s not the way the Constitution works. And the Electoral Count Act, which applied in 2020, and 2021, was reformed last year. And we now have an electoral count Reform Act. And this strengthens the guardrails, it requires more members of Congress to object. 20 percent of each house of Congress who object in order to send it into deliberations. It applies stronger presumptions with regard to the electoral certificates that are submitted by the executive, by the governors in the states if they’re done on time, December 11, and December 17, as that occurs in 2024. So I think it’s going to be very difficult for Congress to just dismiss that. Also important to note, the Congress that gets to decide this is the next Congress. It’s not the Congress that’s currently sitting. It’s the Congress that’s elected in November of 2024. So that majorities might shift and so assumptions made now might not apply in January of 2025.
MARGARET BRENNAN: And if you are not a U.S. citizen, you cannot vote. But Donald Trump is saying that that’s part of this migrant crisis, part of a conspiracy.
BECKER: Yeah, it’s true if you’re not a U.S. citizen, you don’t have the right to vote. The protections in place are stronger than ever before. There’s federal law that has applied for over two decades that requires every voter to show ID in order to register to vote and we’ve studied this for years and we know that fraud is very, very minimal.
MARGARET BRENNAN: David. Thank you
BECKER: Thank you, Margaret.
MARGARET BRENNAN: Back in a moment.
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