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THE DEMOCRATIC SCANDAL DU JOUR. You probably haven’t heard of this controversy unless you spend time in the fever swamps of MSNBC or the Twitter feeds of Democratic provocateurs. Nevertheless, some veterans of the Resistance are getting very excited over what they see as an enormous new scandal — what one calls “attempted election fraud on a massive scale” — involving former President Donald Trump’s refusal to accept the result of the 2020 election.
Here’s the short version: Trump supporters in a few states — Georgia, Arizona, Wisconsin, Pennsylvania, Nevada, Michigan, and New Mexico — were so brazen that in the days before Dec. 14, 2020, when the Electoral College voted to confirm Joe Biden’s victory, they actually forged documents falsely purporting to be Electoral College results for Trump and sent them to the appropriate authorities in Washington and in their home states. They then planned to use the forgeries to steal the election on Jan. 6, 2021. All the while, they hoped no one would notice.
It was a “previously unknown, mysteriously coordinated effort to have Republicans in multiple states forge election documents after the last election and present themselves as fake electors to the Electoral College,” MSNBC’s Rachel Maddow said recently. In an earlier program, referring specifically to Wisconsin, she said, “The fraudulent electors met in a concerted effort to ensure they would be mistaken, as a result of their deliberate forgery and fraud, for Wisconsin’s legitimate presidential electors chosen by the mechanism prescribed under the U.S. Constitution and Wisconsin law.”
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The reality is a little less exciting than that. It’s actually a lot less exciting than that.
After the Nov. 3, 2020, voting, Trump very publicly challenged the results of the election. He filed lots of lawsuits, most of which were thrown out. None succeeded, but some took a while to make their way through the courts.
The law required the Electoral College to meet in the states on Dec. 14, 2020, to approve slates of electors. Those would then be sent to Washington, where Congress would certify them on Jan. 6, 2021. On Dec. 14, in the states Joe Biden won, including all the states listed above, electors for Biden met to formalize their votes.
But on the 14th, there were a number of Trump lawsuits still pending in those states. The Trump team’s thinking went like this: The election is still not finally settled. What if Trump were to win one or more of those suits and a judge were to throw out the results in one or more states? You might view this as a fantasy — indeed, it was — but in some cases, Trump supporters thought they had a strong legal case that would prevail if only a judge would hear it. In the event that a court threw out Biden’s victory in any state, Trump would need a slate of electors to cast electoral votes for him. And by law, the electors had to have voted on Dec. 14. If Trump won a case, and a state’s results were thrown out, and Trump had no electors, then the whole election challenge would be a waste.
So in some states, Trump supporters decided to choose electors on Dec. 14 on a contingency basis. That is, the electors would be selected, and if, at a later date, Trump prevailed in court, and Biden’s electors were disqualified, the Trump electors would be presented to Congress on Jan. 6. There was no realistic chance of that happening, but many of the Trump supporters were not ready to give up.
The Trump supporters, often Republican Party officials, met to choose Trump electors on Dec. 14. I looked specifically into the case of Georgia, which seems to be representative of the other states. Here are some things to know:
First of all, what the Republicans were doing was not a secret. They announced it. They invited the press to cover it. They tweeted about what they did. There were news accounts of it. How Rachel Maddow came to believe it was “previously unknown” is not clear.
“We were told by the lawyers that if the Republican nominees for the Electoral College did not meet on Dec. 14 and cast their votes, then Trump’s lawsuit would be mooted because there would be no remedy available to him if he prevailed,” said David Shafer, head of the Georgia Republican Party, who took part and signed the documents. “So we met to preserve his remedies if he prevailed.”
The group met in the Georgia Capitol in Atlanta, the same day the Biden electors were meeting elsewhere in the building. The GOP had invited reporters to come. Some did, from both local and national outlets. You can read this account of the meeting — “As electoral college formalizes Biden’s win, Trump backers hold their own vote” — in the Washington Post.
Just to make sure everyone knew what was happening, Shafer tweeted what had been done within an hour after the meeting’s conclusion. “Because the president’s lawsuit contesting the Georgia election is still pending, the Republican nominees for presidential elector met today at noon in the State Capitol and cast their votes for president and vice president,” Shafer tweeted. “Had we not met today and cast our votes, the president’s pending election contest would have been effectively mooted. Our action today preserves his rights under Georgia law.”
Republicans in the other states did the same thing and explained so publicly. The Washington Post talked to GOP officials in other states who gave the same explanation.
So again, you might think this was all fantasy. It had zero chance of succeeding. But there was no secrecy involved and no claims that the electors chosen were the real electors. There was only the explanation that if Trump won his lawsuits, and a court threw out the election results, then the Trump electors would be available.
There was simply no fraud involved. But Maddow and others also accuse the Republicans of forgery. What about that?
The charge arises from the fact that the documents the Republicans created had some of the same wording as the documents signed by the winning Biden electors. For example, one page of the Georgia slate of electors said, “We, the undersigned, being the duly elected and qualified electors for president and vice president of the United States of America from the state of Georgia, do hereby certify the following …” Of course, they were not “duly elected” electors. They were sending in their votes in case, as a result of court action, they became the duly elected electors.
Some states made explicit reference to the contingent nature of the electors. For example, the New Mexico documents said, “We, the undersigned, on the understanding that it might later be determined that we are the duly elected and qualified electors for president and vice president of the United States of America from the state of New Mexico, do hereby certify the following …” That made it much more explicit that the document was contingent, not an actual claim to be the genuine electors at that moment.
I asked Shafer why he did not choose some sort of contingency language — why he chose instead to use the exact language of the winner’s electoral slate. Why not change the forms a bit to indicate that it was a provisional slate of electors? “We completed the forms exactly as prescribed by law,” Shafer said. “We did not alter them because we were told that any alterations would be grounds for dismissing the lawsuit for lack of available remedy.”
Whatever it was, it was not a forgery. But in the end, it all depended on the entirely unrealistic hope that Trump would somehow succeed in court. It wasn’t going to happen. The slates of electors were contingent on an event that did not occur. And the signers of those slates knew that. For whatever reason — hope, belief in the cause, pressure from GOP voters, whatever — they signed the slates. It wasn’t secret. It wasn’t fraud. It wasn’t forgery.
Now, there is another element of the story and that is what happened to the slates when law professor John Eastman, working with the Trump team, made the slates the focus for his memos on whether Vice President Mike Pence had the authority to overturn the election.
Eastman wrote two memos, a short one and a long one. Both rely entirely on the existence of “dual slates of electors” in several states. The short memo begins this way: “7 states have transmitted dual slates of electors to the President of the Senate.” The longer memo outlines irregularities in the states and says: “Because of these illegal actions by state and local election officials … the Trump electors in the above 6 states (plus in New Mexico) met on December 14, cast their electoral votes, and transmitted those votes to the President of the Senate (Vice President Pence). There are thus dual slates of electors from 7 states.”
The existence of “dual slates” is the foundation for Eastman’s argument. If there are no “dual slates,” there is no case for Pence to interfere with the results.
But there were, in fact, no “dual slates.” The Republicans in Georgia and other states had clearly chosen electors on a contingency basis, contingent on a court ruling in Trump’s favor and overturning the election results. That did not happen. Therefore, the Trump electors were not the real Georgia electors.
I asked Eastman about that in a conversation Monday. He said yes, the electors were contingent on a court taking action, but also on the possibility that “some other legitimate authority would invalidate the election.” By “other legitimate authority,” he said he meant a state legislature.
But no state legislature overturned the results, either. “The contingencies had not occurred,” Eastman conceded. “So the question is whether January 6 is a definitive, dispositive day.” Eastman concluded that it was not, “given the unconstitutionality that had occurred in the conduct of the election.” That meant all bets were off, and Pence could still, for example, throw the elections back to the states in some key cases.
But again, the fact is, Republicans chose the slates on a contingency basis, contingent on a specific event happening. That event did not happen. So the slates had no value.
I asked Shafer if he knew about Eastman’s plan when he approved the slate of electors on Dec. 14. He said no, he did not. I asked Eastman if he knew about or played a role in the state Republicans deciding to choose Trump electors. “There had been some talk about it, and I was hopeful that they would do that,” Eastman said, “but I had not been in communication with any of the electors or any of the states.”
In the end, Eastman’s analysis was just wrong. But that does not mean Republicans in the states engaged in secrecy, fraud, and forgery in a wild attempt to fool the Electoral College into electing Trump.
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