RE: "The weighty lesson from Arizona’s ‘fake electors’ stumble"
Washington Post opinion columnist Jason Willick recently published a piece reminiscing upon the Trump campaign’s 2020 alternate electors plan, and the fallout thereof. I do not know who Mr Willick is nor what his political beliefs are, and I do not intend in this blog post to impugn his personal character. That being clarified, I think that his writings here wholly serve the practical function of acting as a propaganda pamphlet for the bad actors of the Trump campaign who are trying to clean their public image after their failed conspiracy to subvert America’s constitutional order.
The article notes that the 1887 Electoral Count Act “anticipated the possibility of states sending competing slates of electors”, arguing that “sending Congress a slate of electors representing the losing candidate is a political act, not a crime”. Now, ignoring the question of whether the ECA was even constitutional to begin with,1 Willick completely fails to clarify that President Trump’s alternate electors were not sent by their respective states whatsoever. The campaign created their own documents, and delivered them to the respective state capitols acting of their own volition.2 The ECA’s provision that states may send multiples sets of electors is obviously not applicable here.3
Willick characterises the prosecutions of the Trump electors as being an attempt at “criminalizing alternate electors”, but this is thoroughly incongruent with the reality of what these prosecutions actually entail. As former Attorney General Barr has stated, “there's nothing inherently wrong with naming an alternative slate of electors.”4 Nobody is disputing that. The Trump electors were not simply presenting themselves as an alternative slate, however, they explicitly declared themselves in the documents they carried to be “the duly elected and qualified Electors” of their respective states.5 This dishonesty could be furthermore blatantly seen when the Trump-Pence electors tried to enter the Michigan state capitol, with a Thomas More Society lawyer tagging along. The lawyer, Ian Northon, told the police officers blocking the entrance that “[t]he GOP electors are also on the governor's certificate of ascertainment”, implying that they themselves had been certified by Governor Whitmer. They had not. The lies contained within these imitations of electoral votes are precisely why these individuals are being prosecuted. For example, see the indictment of Trump’s electors in the state of Georgia, which cites these documents as a violation of Title 16, Chapter 10, Section 20 of the Georgia Code: “False Statements and Writings”.6
This flagrant lawbreaking by the Trump campaign is downplayed by Willick, who comments that “no one confused them for the electors certified by state officials.” Regardless of whether or not this statement is true, the implication is ridiculous either way. That other people can recognise somebody as having committed a crime does not somehow negate that he has indeed committed it. If I decided to print counterfeit money in the middle of the town square, does everybody seeing that my documents are forgeries somehow give me criminal immunity? This question does not need further examination.
At no point throughout the article does Willick provide an answer to the most obvious question about these elector shenanigans. For what reason did the Trump campaign organise and submit the alternative electoral votes? The truth is that they intended that Vice President Pence, who holds a dual role as President of the Senate under Article I of the US constitution, would assert that he holds a sole, unilateral power over the electoral college vote count deliberations (he doesn’t). Citing the presence of two sets of “competing” electoral votes—the Biden electors and the Trump campaign’s alternative electors—within the seven different states wherein the alternative votes were submitted, Pence would outright reject the electors of those seven different states as not being “validly appointed”. With several electors gone, the winning electoral college majority needed would now be only 228 electoral votes, a number low enough such that President Trump would now meet the requirements to secure a majority of the votes in the electoral college, and thereby another four-year term in office. That is to say that the Trump campaign had designed and had begun to implement a quasi-procedural self-coup d'état.7
I do not claim that every single thing that has happened surrounding these events exists on a black-and-white spectrum of morality. Some of the alternate electors, such as Andrew Hitt, have claimed that they were duped into participating in the scheme without being provided the full context by the Trump campaign. Willick’s article itself was prompted by the recent revelation that the prosecutors of the 2020 Arizona fake electors had failed to provide the grand jury with the relevant provisions of the ECA during the proceedings. These nuances, however, are perfectly able to be discussed without having to degenerate your writings into something to be regurgitated by the Trump adulators dwelling inside the bowels of Twitter.
In my understanding, the twelfth amendment mandates that the electoral votes are to be counted by the Senate and House of Representatives in a ministerial act, meaning that they should not be able to exercise deliberation powers over any disputes around the votes that might arise. That decision would fall upon, if anybody, the judiciary. I have been working on an essay that analyses the evidence regarding the original public meaning of the twelfth amendment’s counting clause, which I will probably release here sometime after this blog post.
Although they later stated otherwise, individuals in the Trump campaign acknowledged in internal communications that their alternate electors were not approved by the state governments. Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, page 344, citing “‘Kind of Wild/Creative’: Emails Shed Light on Trump Fake Electors Plan”. Selected quote: “PS - I just talked to the gentleman who did that memo, Ken Chesboro. His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren't legal under federal law -- because they're not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th. (They could potentially argue that they're not bound by federal law because they're Congress and make the law, etc.) Kind of wild/creative -- I'm happy to discuss. My comment to him was that I guess there's no harm in it, (legally at least) - i.e. we would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted. Best - Jack”. Emphasis added. Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, page 343, citing “Statutory Requirements for December 14 Electoral Votes”, page 1. Selected quote: “It appears that even though none of the Trump-Pence electors are currently certified as having been elected by the voters of their State, most of the electors (with the possible exception of the Nevada electors) will be able to take the essential steps needed to validly cast and transmit their votes, so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election. (On why this could work, see here and here.) And, they can do so without any involvement by the governor or any other state official (except, in some States, where access to the Capitol Building is or might be needed, or where the Governor must approve a substitute elector or, in Nevada, where the Secretary of State is involved).
It is important that the Trump-Pence Campaign focus carefully on these details, as soon as possible, if the aim is to ensure that all 79 electoral votes are properly cast and transmitted – each electoral vote being potentially important if the election ultimately extends to, and perhaps past, January 6 in Congress. The National Archives has a very helpful checklist, here.” Emphasis added. Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, pages 447-448, citing “ANALYSIS OF PROFESSOR EASTMAN'S PROPOSALS”, pages 1, 3. Selected quote: “Had one or more State legislatures in the seven disputed States certified and submitted a competing slate of electors, a strong argument could be made that such a submission would qualify as a certification by a ‘State authority’ sufficient to trigger the Electoral Count Act's provisions for deciding multiple slate disputes. 3 U.S.C. § 15. A reasonable argument might further be made that when resolving a dispute between competing electoral slates, Article II, Section 1 of the Constitution places a firm thumb on the scale on the side of the State legislature. U.S. CONST, Art.II,§ 1 (‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …’). Here, however, no State legislature has appointed or certified any alternate slate of electors, and Professor Eastman acknowledges that most Republican legislative majorities in the States have signaled they have no intention of doing so.” Emphasis added.
That provision, if you have not seen it, read as follows: “If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” United States Code, Title 3, Section 15 (2020).
CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM ARIZONA; CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA; CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM MICHIGAN; CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM NEVADA; CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM WISCONSIN. The alternative electors in Pennsylvania and New Mexico were exceptions to this, for their certificates clarified that they were being respectively submitted “on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors” and “on the understanding that it might later be determined that we are the duly elected and qualified Electors”. CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM PENNSYLVANIA; CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM NEW MEXICO.
Georgia v. Trump, Indictment, page 41. Selected quote: “On or about the 14th day of December 2020, DAVID JAMES SHAFER, SHAWN MICAH TRESHER STILL, CATHLEEN ALSTON LATHAM, and unindicted co- conspirators Individual 2, Individual 8, Individual 9, Individual 10, Individual 11, Individual 12, Individual 13, Individual 14, Individual 15, Individual l6, Individual 17, Individual 18, and Individual 19, whose identities are known to the Grand Jury, committed the felony offense of FALSE STATEMENTS AND WRITINGS, in violation of O.C.G.A. § 16-10-20, in Fulton County, Georgia, by knowingly, willfully, and unlawfully making and using a false document titled ‘CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA,’ with knowledge that said document contained the false statement, ‘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,’ said document being within the jurisdiction of the Office of the Georgia Secretary of State and the Office of the Governor of Georgia, departments and agencies of state government. This was an act of racketeering activity under O.C.G.A. § 16-14-3(5)(A)(xxii) and an overt act in furtherance of the conspiracy.” Emphasis in original.
The precise details of the plan did not remain wholly consistent. Sometimes it was intended that Pence would preside over the joint session of Congress, and other times it was suggested that the President pro tempore should preside instead. Sometimes Pence would reject all “competing” votes, and other times he would attempt to count the alternative electors. Sometimes the votes would be sent “back” to their respective states for their legislatures to deliberate over (presuming that they would side with Trump), and sometimes rejecting the votes would simply be seen as reducing the overall majority needed to win the college. In spite of these differences and contradictions, the overall plan remained that the presiding officer would obstruct the electoral count in attempt to have Trump remain president. January 6 scenario, page 2. Selected quote: “At the end, he [Pence] announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of ‘electors appointed’ - the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A ‘majority of the electors appointed’ would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.” Brief notes on “President of the Senate” strategy, pages 1-3. Selected quote: “Here is a chronology of how things could play out, if there is a serious effort to employ the argument that the President of the Senate counts the votes. … The Vice President announces that he will not serve as presiding officer, for two reasons. First, Congress cannot, by statute, impose duties on either the President or Vice President beyond those set out in the Constitution. For example, Congress could not by statute require the President to throw out the first ball on opening day of the baseball season. Likewise, the Vice President's duties are precisely set out in the Constitution, and Congress may not add to them. See Kesavan at 1700-01, note 213.
Two, even if Congress can mandate that a Vice President, in general, must preside over the electoral count, Pence takes the position that he should not, and cannot, in this instance, preside, because he has a conflict of interest, as one of the candidates for election. See id. at 1698-99. Thus, one of the Senators or Representatives should be selected to serve as the presiding officer Id. at 1700.
Note that Pence so far has only indicated that he will not serve as presiding officer, based on a constitutional objection to Congress imposing extra duties on the Vice President.
It is a separate matter whether he will have a role in the joint session itself. Because the Vice President clearly serves as the President of the Senate, and the Twelfth Amendment states that in the joint session, ‘[t]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.’
So by the constitutional test, he should perform that role, unless he has a constitutionally valid reason not to.
After a presiding officer is selected, he or she will then ask Vice President Pence to open the envelopes, starting with Alabama.
At this point, the Vice President will recuse himself, on the basis that as a candidate for election himself, and given that there is dispute about the electoral votes of some of the States, and especially given that it might well be the responsibility of the President of the Senate to actually count the votes, he has a conflict of interest, and he feels he cannot participate in the proceeding -- just as Vice President Humphrey recused himself in the January, 1969, electoral vote count. See Kesavan at 1702 n.219. And just as the Vice President, who presides during impeachment trials, does not preside during an impeachment trial of the President.
At this point, the Vice President will have emphasized the need for focus on plain language and adherence to the Constitution, by rejecting the role of presiding officer imposed by the Electoral Count Act. He will also have made clear that he and the President are not going to be involved in counting the votes concerning their own election, which is why he feels bound to recuse himself on conflict-of-interest grounds, just as a Democrat did previously.
Of course, politically this will insulate him and the President from what will happen next. For it is much easier for someone acting as President of the Senate to defend the prerogatives of the office if he has no conflict of interest (other than, of course, a patisan interest, which is unavoidable).
In the absence of the Vice President, the president pro tempore acts as the President of the Senate, and thus is the one with the sole power and responsibility to play that role in the joint session. So regardless of whether it is Chuck Grassley or another senior Republican who agrees to take on the role of defending the constitutional prerogatives of the President of the Senate, whoever it is then proceeds to open and count first Alabama, and then Alaska, at which point Trump and Pence are leading 12-0.
He then opens the two envelopes from Arizona, and announces that he cannot and will not, at least as of that date, count any electoral votes from Arizona because there are two slates of votes, and it is clear that the Arizona courts did not give a full and fair opportunity for review of election irregularities, in violation of due process. ...
Unless by then the Supreme Court has taken that case and rejected it on the merits, the President of the Senate can make his own judgment that the Arizona proceedings violated due process, so he won't count the votes in Biden's column.
But, reprising the theme of modesty, and making clear that he is not using the power of his position to throw the election to Trump and Pence, he refuses to count Arizona in the Trump-Pence column. He says that if Arizona wants to be represented in the electoral count, either it has to rerun the election, or engage in adequate judicial review, or have its legislature appoint electors.” Emphasis in original. Important That All Trump-Pence Electors Vote on December 14, pages 1-2, as published in “Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden’s Win”. Selected quote: “I'd be happy to follow up on the subject with a separate memo, if the national legal strategists are interested, but I've mulled over how January might play out, and it seems feasible that the Trump campaign can prevent Biden from amassing 270 electoral votes on January 6, and force the Members of Congress, the media, and the American people to focus on the substantive evidence of illegal election and counting activities in the six contested States, provided three things happen”. Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial. Selected quotes: “States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”;
“[I]f Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country [John Eastman]. He has the absolute right to do it.” Video available here. Donald J. Trump on Twitter: "If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!"; Donald J. Trump auf Twitter: "States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!"; Continued Interview of Cassidy Hutchinson (Mar. 7, 2022), pages 143-148. Selected quote: “They felt that he had the authority to -- pardon me if my phrasing isn't correct on this, but -- send votes back to the States or the electors back to the States, more along the lines of the Eastman theory. … I don't recall anybody speaking out and definitively expressing disagreement with that theory. I believe I am not out of line for -- I don't want to say ‘speculating’ -- for saying that the Vice President's team appeared slightly skeptical.” Deposition of Greg Jacob, pages 88-89. Selected quote: “So I think the most accurate way to -- because I think a yes-and-no question is going to be difficult on this. I think, at the meeting on the 4th, Eastman expressed the view that both paths were legally viable, but that the preferred course would be a procedural course where the Vice President would send it back to the States, that that would be more palatable than a mere invocation of raw authority to determine objections himself.” Deposition of Keith Kellogg, Jr, pages 90-91. Selected quote: “You only hear the President speaking back and forth going there. And he told the Vice President that, you know, he has legal authority to send these folks back to the respective States. … That he had the constitutional authority to do that … But words to the effect, in his role, what he was going to do that day, the answer's yes.”