Perhaps not surprisingly, swing state leftist prosecutors are ramping up the phony “fake electors” show trials, with Biden v. Trump 2.0 little more than six months away. And the Trump-hating accomplice media will be aiding and abetting this specialized brand of lawfare every step of the way.
But the litigious left has run into some problems trying to sell its legally flawed narrative that former President Donald Trump, along with his campaign attorneys and supporters, unlawfully used an alternate electors strategy to subvert the results of the 2020 elections.
Last week, Arizona became the latest Democrat swing state to target political opponents via the “fake electors” narrative. Attorney General Kris Mayes announced the indictment of 18 people, including 11 alternate electors for Trump. The accused include former Trump campaign attorney Christina Bobb, who currently serves as the Republican National Committee’s senior counsel for election integrity, and John Eastman, former Trump attorney who is facing disbarment in California for leading an alternate electors strategy similar to the one that was employed by John F. Kennedy’s 1960 campaign.
Also indicted are Trump adviser Rudy Giuliani and the former president’s White House Chief of Staff Mark Meadows, in a move Forbes described as “the latest in a string of states where false electors and Trump allies are now facing criminal charges and investigations years after the 2020 election.”
“I think these are political prosecutions that are outside of the law,” said Hans von Spakovsky, a senior legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. “Quite apart from the historical precedent for the moment, keep in mind that what these individuals did in Arizona, Georgia, and elsewhere is get alternate electors to be ready as a contingency if it was decided the election should be overturned.”
There’s nothing illegal about that, von Spakovsky said.
‘Dueling Electors’
The 18 indicted in the Arizona case face felony charges of conspiracy, “fraudulent schemes and artifices,” fraudulent schemes and practices, and forgery. They are accused, according to the Arizona Mirror, of “signing bogus documents claiming that they were Arizona’s certified electors and that Donald Trump won the 2020 election.” Republicans in Georgia, Michigan, and Nevada have been similarly charged with falsely certifying that Trump, not Biden, won the election.
But, as von Spakovsky notes, the alternate electors strategy used while legal disputes over Biden’s razor-thin victories in several swing states were pending was not some novel theory. In the disputed 1876 election, in which Southern Democrats were accused of widespread voter fraud, three states offered two sets of electors — one set each for Democrat Samual Tilden and Republican Rutherford B. Hayes.
As Reuters notes:
In Southern states, the voting was marred by threats of violence from Democrats who aimed to keep black voters away from the polls. The Democrats also created ballots that carried pictures of famous Republican Abraham Lincoln to try to trick illiterate voters into choosing Tilden.
At the end of the tumultous campaign, competing political camps in three states each sent two different slates of electors – one for Tilden, the other for Hayes – to Congress.
The dueling slates from Florida, Louisiana and South Carolina arrived with varying degrees of authority; the Republican slate from Louisiana supporting Hayes was sent by the state’s governor while the Democratic slate backing Tilden was sent by that party’s gubernatorial candidate.
The election hinged on the disputed states. If their Republican electoral votes were counted, Hayes would be president. If the Democratic slates were counted, Tilden would be elected.
None of the contingent electors was indicted or threatened with years in prison for attempting to protect their candidate in the disputed presidential election.
The same can be said for the 1960 election, when Hawaii’s electors for Richard Nixon, the Republican presidential candidate, and John Kennedy, the Democrat, met on Dec. 19 to “cast their votes for President and Vice President” and certify “their own meeting and votes.” Nixon had won the state by a mere 141 votes and a recount was ongoing.
As The Federalist’s Margot Cleveland wrote last year in a piece headlined, “The Left’s 2020 ‘Fake Electors’ Narrative Is Fake News“:
In casting their electoral ballots for Kennedy, the three Hawaiian Democrats certified they were the “duly and legally qualified and appointed” electors for president and vice president for the state of Hawaii and that they had been “certified (as such) by the Executive.” The Hawaii electors further attested: “We hereby certify that the lists of all the votes of the state of Hawaii given for President, and of all the votes given for Vice President, are contained herein.”
Two of the three Democrat electors were retired federal judges, William Heen and Delbert Metzger, and Heen personally mailed the Democrat electoral votes to Congress on Dec. 20. In fact, the envelope containing the certificates, further attested: “We hereby certify that the lists of all the votes of the state of Hawaii given for president … are contained herein.”
The electors were simply attempting to protect their candidate’s position, even though the initial numbers showed Kennedy lost Hawaii, albeit by just 0.08 percent of the vote.
On Dec. 30, 1960, the judge who had ordered the recount “held that Kennedy had won the election,” Cleveland wrote. The judge, she added, “stressed the importance of the Democrat electors having met on Dec. 19, as prescribed by the Electoral Count Act, to cast their ballots in favor of Kennedy. That step allowed the Hawaii governor to then certify Kennedy as the winner of Hawaii’s three electoral votes and, in turn, Congress to count Hawaii’s electoral votes in favor of Kennedy.”
Von Spakovsky noted that in more recent presidential elections numerous legislators, particularly Democrats, have filed objections to electoral votes. In January 2017, Democrats voiced their disdain for Trump by attempting to object to some states’ Electoral College votes, as NBC News reported at the time.
Preserving Trump’s Legal Standing
So why are the alternate electors for Trump four years later being rounded up as criminals?
“These are politically motivated political prosecutors, certainly in the case of Fani Willis in Atlanta. And it’s the same thing in Arizona,” von Spakovsky said.
But leftists have tried — and failed — to push their phony “fake electors” lawfare scheme elsewhere.
In Pennsylvania, even far-left Democrat Gov. Josh Shapiro, the Keystone State’s attorney general at the time, was forced by the facts to concede that “our office does not believe this meets the legal standards for forgery.” The Trump alternate electors there specified that if the courts later determine that they are the “duly elected and qualified electors,” their certification of the election for Trump would then be considered valid.
Like the alternate electors in other swing states where the election results were questioned, the Pennsylvania stand-ins have said they wanted to be in position by the statutory deadline in case the Trump campaign won its legal challenges. The campaign didn’t win, but that doesn’t make the legal strategy illegal, von Spakovsky said.
In Wisconsin, the Wisconsin Elections Commission twice rejected complaints from a leftist lawfare group about Republican alternate electors. Interestingly, the Wisconsin Department of Justice, led by far-left Democrat Attorney General Josh Kaul, said the Republicans who attempted to cast electoral voters for Trump did not violate any election laws.
“The state Justice Department concluded that Republicans were legitimately trying to preserve Trump’s legal standing as courts were deciding if he or Biden won the election,” the Associated Press reported. What happened in Wisconsin, which was involved in a recount in the days after the election, is the same strategy employed in Arizona, Nevada, Michigan, and the other states Trump was contesting.
‘Kennedy was a Democrat’
Curiously, as the 2020 election sequel is set, reports suggest Kaul may be changing his tune. A spokeswoman for the AG recently told USA Today that the department “does not confirm or deny the existence of an investigation” but that Kaul “believes that those who committed crimes in an effort to unlawfully subvert the outcome of an election should be held accountable.”
Special prosecutor Jack Smith is leading the politically driven federal conspiracy and obstruction charges against Trump over his actions on Jan. 6, 2021. Smith reportedly has been working with the New Mexico attorney general’s office, which in January announced that alternate electors there could not be charged because they did not break election law.
Still, the plot thickens in the attempt to cancel President Joe Biden’s opponent in November’s general election. And Big Tech and the accomplice media are ready to assist. As CNN reported this week, Google and X have delivered “hundreds of files to Michigan prosecutors for their 2020 election subversion probe, complying with search warrants that investigators obtained after CNN revealed secret social media accounts belonging to pro-Trump lawyer Kenneth Chesebro, who played a major role in the fake electors plot.”
These Democrats are prosecuting Republicans for the same thing Democrats did in 1960. If it was legal for Kennedy, why is it illegal for Trump?
“Kennedy was a Democrat,” von Spakovsky said.
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
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