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Opinion: Trump’s fake electors don’t have a historical leg to stand on

Opinion by Robert Alexander

(CNN) — The plot to overturn the results of the 2020 election by calling on fake electors to cast ballots for former President Donald Trump – with the goal of having his vice president, Mike Pence, interfere with the legitimate counting and certification of electoral votes on January 6, 2021 – is coming to a head.

Last week, Trump was named an unindicted co-conspirator in Michigan’s case against 16 fake electors. That same day, Trump was assumed to be “Unindicted Coconspirator 1” in an indictment released by the Arizona Attorney General’s Office charging 11 GOP fake electors and seven others – believed to include Rudy Giuliani, former White House Chief of Staff Mark Meadows and former White House aide Boris Epshteyn – with conspiracy, fraud and forgery related to a plot to keep Trump “in office against the will of Arizona’s voters.”

Six fake electors in Nevada are scheduled to stand trial in January 2025, and Trump himself is among those indicted in Georgia’s sweeping investigation of the fake elector plot in that state.

Unsurprisingly, Trump has been dismissive of the charges in Georgia, proclaiming his innocence and accusing prosecutors of a “witch hunt.” Some high-ranking Republicans, such as Wisconsin Sen. Ron Johnson, have suggested that Democrats have done similar things in the past. History suggests otherwise.

As a scholar who has studied presidential electors and the Electoral College for two decades, I believe it is important to cut through the noise of claims such as those floated by Johnson to understand just how pernicious Trump’s actions were.

In December 2020, Trump’s White House senior advisor Stephen Miller said on Fox News that an “alternate slate of electors in the contested states is going to vote and we are going to send those results up to Congress.” At the time, the argument was that because the Trump campaign’s legal challenges to the election were winding their way through the courts, it was important to cast these votes in case any of their appeals prevailed. It is true that this argument is not without some precedent.

In 1960, both Republicans and Democrats submitted slates of electors to be counted before the joint session of Congress. An initial tally of the vote had then-Vice President Richard Nixon winning Hawaii by just 141 votes, which was certified by the state’s acting governor on November 28, three weeks before electors were to officially cast their votes in the state capitol. In the midst of a statewide recount on December 19, members of the Electoral College across the nation were required to meet. The previously certified Republican electors met and cast their votes in the official ceremony, while Democrats met separately and signed documents purporting to be the “duly and legally appointed and qualified” electors.

When Hawaii’s recount concluded on December 28, then-Democratic Sen. John F. Kennedy prevailed by just 115 votes. On December 30, a judge weighed in and agreed with the finding of the recount. On January 4, the governor had the electors convene and sign new certificates that he also signed and sent to the joint session of Congress.

When Congress met to count the Electoral College vote just two days later, Nixon was in a similar spot as Pence. As former President Dwight Eisenhower’s vice president, it was his duty to oversee the counting of electoral votes. Although he received three sets of certificates from Hawaii, he asked for unanimous consent that the votes for Kennedy be accepted as the legitimate electoral votes from the state. Congress did so.

What happened in Hawaii in 1960 will be closely scrutinized as prosecutors target fake elector schemes. While it could be argued that the Trump campaign was simply engaging in due diligence, with some precedent for their actions, what we have learned suggests something far more disturbing.

First, unlike the Hawaii situation, evidence produced by congressional investigators suggests the plan to have “alternate electors” cast votes in battleground states was formed at least a month before the November election and had been fueled by Trump’s years-long attacks against our electoral process. Trump advisor and conservative attorney John Eastman, who is also believed to be among those indicted in Arizona, commented on a draft proposal regarding an alternate elector plan in October 2020 and was at the Ellipse with Trump as he addressed the crowd on January 6, 2021, when Trump proclaimed that “if Mike Pence does the right thing, we win the election.”

Yet, in that October draft letter revealed by the House committee investigating the January 6 insurrection, Eastman indicated that he did not believe that the vice president had the authority to single-handedly judge Electoral College votes: “Nowhere does it suggest that the President of the Senate gets to make the determination on his own,” he wrote. Moreover, Eastman admitted as late as January 4 that the plan would violate the law, according to testimony before the committee from Pence’s attorney.

Second, unlike the events in Hawaii in 1960, Trump pressed members of Congress – and, most importantly, Pence – to dispute electoral votes or reject electoral votes in order to change the outcome of the election in his favor. He did this even though he was advised that Pence did not have the authority to accept or reject electoral votes on his own. In 1960, Nixon accepted the second slate of electors the Democrats submitted, stating it “properly and legally portrays the facts with respect to the electors chosen by the people of Hawaii.” He did so even though the slate was not submitted fully in accordance with the Electoral Count Act of 1887. Trump pressured Pence to do the opposite.

Third, and this appears to be especially relevant to the legal case against Trump, is that special counsel Jack Smith’s indictment of Trump relating to January 6 states that Trump knew his claims of voter fraud were incorrect and that he privately knew he lost, but continued to publicly state he had won. If these charges are proven to be true, it would establish that Trump knowingly sought to corruptly obstruct an official proceeding and engaged in various forms of fraud. This is what transforms Trump’s actions from the political to the potentially criminal.

Trump’s actions and the resulting crisis led Congress to swiftly consider and pass the Electoral Count Reform Act of 2022 (ECRA) – a bipartisan bill intended to prevent future attempts to seat fake electors. Amending the 130-year-old Electoral Count Act, which it replaced, appears not to have been on the legislative radar prior to Trump’s shenanigans.

Given the political nature of the allegations against Trump, a knowledge of history and context is critical in evaluating his actions, as well as those of the supporters who acted on his behalf. Thus far, Trump has faced few political consequences for his alleged efforts to strongarm his vice president and overturn the will of voters. He currently is the presumptive nominee of his party and is in a tight race with President Joe Biden. Whether Trump and his GOP enablers see legal consequences for their behavior surrounding the January 6 plot will tell us a great deal about the health of the republic.

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