Three allies of Donald Trump were charged in Wisconsin Tuesday for their roles in advancing the fake electors plan, but the 10 fake electors themselves have not yet been criminally charged.
That might be because the Wisconsin fake electors, like other fake electors across the US, have said in media interviews they were misled to believe their documents could only be used if court challenges went for the former president. Others have said they were following lawyers’ advice when they signed on.
Wisconsin attorney general Josh Kaul’s office has said it is still investigating and hasn’t ruled out charges against the individual electors, who have faced a civil suit they settled by agreeing not to serve as electors for Trump again.
In April, 18 people were charged in Arizona in that state’s inquiry into the fake elector scheme. Defense attorneys representing some of those charged in Arizona have used similar justifications, saying they were following lawyers’ advice when they signed on.
One told the Arizona Republic that his client, Jim Lamon, was relying on “lawyers from back east” who said the slates would only be used if the state’s results changed. Another told the paper that there wouldn’t be any evidence of their client’s intent to commit fraud or forgery because they got legal advice from Trump’s lawyers that led them to believe they weren’t doing anything wrong.
These claims pop up frequently by fake electors and those involved in the scheme to overthrow the 2020 election results, as do other defenses relying on historical precedent and changing election law. Defenders of the fake electors cite a 1960 election in Hawaii and changes to congressional procedure to count electoral votes among their justifications..
Some of the defenses have shown up in legal motions in Georgia, which is further along in its case against some fake electors there. But the justifications are largely happening online as the cases move more slowly than the internet, with rightwing influencers saying the scheme had a historical precedent and wasn’t illegal.
Edward Foley, an election law expert at Ohio State University, has started to see the false electors in two tiers: those who were clearly in “cahoots with Trump” and intended to subvert the election’s outcome, and others who were duped. Andy Craig, director of election policy at the Joseph H Rainey Center, has come around to this idea as well, saying it depends heavily on the facts in each fake elector’s case, but some of them did seem misled.
“I do think, to my mind, it’s fair to say that some of these fake electors are the victims of Trump’s fraud and [Rudy] Giuliani’s fraud,” Foley said. “They were relatively low-level political operatives who were trying to do something for the team and were doing it because the leader of their team was asking them to. That doesn’t justify what they did, but I’m not sure I would think criminal punishment would be appropriate for them because again, I think they’re the victims of the crime, not the perpetrators.”
In Georgia, prosecutors granted many of the fake electors, nearly all of them little-known party loyalists, immunity from prosecution. Only three of the 16 have been charged criminally, all of whom appear to have a more hands-on role in the scheme.
And in Pennsylvania and New Mexico, for example, the fake electoral certificates contained a caveat that they would only be considered valid if courts eventually ruled in Trump’s favor and deemed him the legitimate winner. Fake electors in those states have not faced prosecution in large part because of that language.
As a reminder, the US doesn’t elect presidents via a popular vote. Instead, voters in each state turn out at the polls, which dictates a slate of electoral votes that get sent to Congress, called the electoral college. Whichever candidate wins the electoral vote wins the presidency, and this is sometimes different from who wins the popular vote. At issue in the fake electors scheme is that Trump supporters signed falsely that Trump had won their states’ votes, when in reality Biden had won.
Other defenses
Legal experts say the fake electors’ other defenses hold less water – the 2020 scheme is much different than the 1960 Hawaii election, and any changes in the Electoral Count Reform Act don’t affect the illegality of what the false electors did.
The 1960 Hawaii election, which involved two slates of electors, is a long-running justification on the right for the fake electors. In 1960, Nixon narrowly led Kennedy initially in Hawaii, though the margin was so small it kicked off a recount. Before the recount could be completed, the state had to send its electoral votes to Congress for counting, so electors for both Kennedy and Nixon signed separate documents saying they were the state’s electors and sent them off.
After the recount, the results showed Kennedy actually won the state, and so Kennedy’s electors met again to sign that he won. Nixon, who was presiding over the electoral count in Congress as vice-president, accepted this final submission. No one got in trouble for the previous slates, though it was also possibly illegal for the Democrats to have met and signed as though Kennedy won before the recount concluded. Hawaii’s votes didn’t affect who won the presidency, as Kennedy had already clinched the win.
“Hawaii is a very odd situation because it ultimately ended with then vice-president Nixon, who was one of the candidates, being willing to accept the Kennedy slate, which didn’t matter one way or the other, wasn’t going to affect the outcome of the electoral college majority” Foley said. “It was sort of like a politician trying to be magnanimous.”
Influencers like Charlie Kirk, the leader of rightwing youth organization Turning Point USA, brought up Hawaii after the Arizona charges. In a post on X, Kirk cited the “precedent created by Democrats” in Hawaii in 1960.
“The Arizona Trump electors were doing what they thought was a legally necessary step as part of a wider political and electoral dispute,” Kirk wrote. “They acted in the belief that Donald Trump was the true winner of Arizona in the 2020 election.”
The major difference: there was a legitimate, ongoing, good faith debate over who won in Hawaii, and a razor-thin margin of less than 200 votes that led to a full recount. By contrast, the margins in the seven states involved in the 2020 plan were much higher, and legal avenues to overturn results had largely run out.
“All of these states were won by bigger margins, far beyond what any kind of recount or litigation was ever realistically going to overturn,” Craig said. “And so there was no good basis to believe that the results would legitimately flip in these states.”
Another line of defense, used less frequently, revolves around changes to the electoral count process after the fake electors scheme in 2020.
Rightwing commentator Mike Cernovich said after the Arizona changes that “multiple electors were LEGAL until the law was recently amended”, presumably a reference to the changes to the Electoral Count Act.
The original Electoral Count Act stemmed from the contentious mess of the 1876 election, where there were multiple competing slates of electors and no consensus over who had won the election. It spelled out the process and deadlines for how states would send electoral votes and how Congress would count them.
“What the Electoral Count Act did and still continues to do is to furnish Congress with a procedure to evaluate competing claims by competing slates of electors,” said Jim Gardner, an election law expert at the University at Buffalo School of Law. “And that’s all it does. So it is a piece of congressional self-regulation. It does not in any way regulate the behavior of other parties outside Congress.”
The 2022 reform act makes clear that the vice-president, when presiding over the count, can’t use their role to get involved in disputes over electors – stemming from the effort to pressure then vice-president Mike Pence to throw out the Biden electors in key states.
It also says that governors must certify the electors and send them to Congress. None of the Trump fake electors were certified by their states’ governments, a required part of the process for Congress to accept a slate.
These changes, though, aren’t evidence that fake electors were allowed under the act before it was amended, legal experts say. Additionally, the charges these electors face in some states are violations of state-level laws against forging documents or committing fraud – not violations of a federal law to count electoral votes.
“I don’t think it’s correct to say that somehow it’s an acknowledgement that any fake submission before this was not criminal,” Foley said.
Sam Levine contributed reporting
