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Prosecuting the Fake Electors: Wisconsin Case Study and Template for Other States

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Following his defeat in the 2020 presidential election, former President Donald Trump and some of his close associates seized upon an array of fringe legal theories in their efforts to overturn Joe  Biden’s victory. On the basis of one such theory, they assembled slates of Trump “presidential electors” in swing states that Biden had won. They attempted to submit these “alternate slates” to the joint session of Congress on January 6th in the hopes of flipping or casting doubt on enough Electoral College votes to secure a Trump presidential victory. The scheme targeted seven swing states, of which reportedly only one has an active criminal investigation by state or local authorities as of the time of writing. That is a gaping absence, especially given the incriminating evidence produced by the January 6th Committee, and the Justice Department’s decision to launch its own criminal investigation of the scheme. In response to this gap, we have separately produced a report that selects one of the remaining six states, Wisconsin, as a case study for pursuing criminal investigations and potential prosecutions at the state level.

What Happened in Wisconsin

Ten people gathered at the Wisconsin state Capitol on December 14, 2020, the federally designated date for the meeting of the Electoral College. By that point, the Trump team had exhausted all available legal mechanisms for challenging the outcome in the state judicial system. Earlier the same day, the Wisconsin Supreme Court had issued a detailed written opinion confirming the results of the recount and Biden’s victory in the state, foreclosing the possibility that litigation might change the outcome of Wisconsin’s presidential election. Of key importance , the ruling also conclusively resolved any questions under state law about the identity of Wisconsin’s 2020 presidential electors. Wisconsin voters and courts alike had definitively spoken in favor of the Biden electors. Indeed, several top Trump administration officials said, in testimony before the January 6th Committee, that by that date, they considered the election decisively over.

Yet these ten individuals in Wisconsin, nine of whom were nominated by the Republican party to serve as presidential electors in the event of a Trump victory in their state, went ahead as if they were in fact the legitimate presidential electors. At noon at the Capitol building, they generated and signed documents mirroring genuine presidential elector certificates. The group then transmitted these documents to the U.S. Archivist and other official recipients. Crucial for any future criminal prosecutions, near-contemporaneous public statements suggest that the group was well aware of the Wisconsin Supreme Court ruling handed down hours before. While the group may have hoped to eventually be declared Wisconsin’s rightful presidential electors, which they never were, they knew that as of noon on December 14, 2020, no official proceeding had lent any legitimacy or legality to their actions.

These false Electoral College votes inflicted lasting local and national harm. They damaged Wisconsin’s civic sphere, where efforts to “decertify” the 2020 election, to give the legislature new power over election administration, and to disband the Wisconsin Elections Commission are still alive and well to this day. They also fed into the warped justification for the Capitol attack on January 6, 2021, as extremists sought to pressure then-Vice President Mike Pence to reject votes cast by the real electors in Wisconsin and several other states. As the House January 6th Committee prepares to release its final report on the events surrounding the 2020 presidential election, we can only expect another wave of aftershocks to ripple across the country.

Accountability Under State Law

As we grapple with these unprecedented and undemocratic events, efforts to hold their perpetrators accountable must continue. Our report explores possible avenues for seeking criminal prosecutions in Wisconsin, specifically targeting the fake electors and those who may have most directly aided them. We examine sections of Wisconsin criminal code that may cover the actions of these individuals on December 14, 2020 and surrounding dates. Perhaps most relevant, Wisconsin Statute § 946.69(2) makes “falsely assuming to act as a public officer” a Class I felony. By “exercising powers as if legally constituted” as public officers, the fake electors might also be found guilty of misconduct in public office under Wis. Stat. § 946.18. Charges for simulating legal process under Wis. Stat. § 946.68 may be viable here as well. The fake electors and those who assisted them may also be charged for conspiracy to commit criminal acts (Wis. Stat. § 939.31) or as “parties to a crime” (Wis. Stat. § 939.31).What’s more, even if a court finds that the actions of the false electors ultimately fell short of their intended—and likely criminal—goals, the very attempt to commit any one of the aforementioned crimes may be prosecuted under Wis. Stat. § 939.32(3).Simply put, the range of available prosecutorial options is broad. (To complete the analysis, in our separate report, we discuss in detail defenses possibly available to the group and the associated chances of success.)

Some have questioned whether state prosecutions of the fake electors in Wisconsin and other states are necessary or desirable, especially given a reported criminal investigation at the federal level. In other words, signs that the U.S. Department of Justice is investigating the scheme may appear to preclude the need for parallel proceedings in Wisconsin state courts. But the potential state law violations outlined above would give state courts jurisdiction—and an important role to play—in these circumstances. Particularly when the investigations might prioritize different actors, both levels of prosecution are critical to prevent perpetrators from slipping through the cracks. State prosecutors may be more inclined to focus on local offenders, for instance, while their federal counterparts may target national players. Adopting a two-pronged approach, as is in fact common in the American justice system, helps ensure that all implicated parties are brought to justice.

Our analysis rests upon publicly available information and Wisconsin state law. In all likelihood, we will not know the full story of Wisconsin’s false electors until a trial or trials are underway, should prosecutors determine criminal charges are appropriate. Even so, the facts as they currently stand merit serious consideration under the applicable criminal laws. Prosecutors should of course take particular care when considering charges for conduct related to elections and politics. But that deliberate caution must not ossify into inaction. No person is above the law in our system of governance, including and especially those who would seek to dismantle it. Only by holding the individuals in Wisconsin and elsewhere accountable for their actions can we hope to repair the damage they inflicted, and to discourage others from following in their footsteps.

Editor’s note: The authors of this report have made it available online as a PDF and it is also provided below.

 

 

Photo credit: A member of Wisconsin’s Electoral College casts their vote for the presidential election at the state Capitol on December 14, 2020 in Madison, Wisconsin. (Photo by Morry Gash-Pool/Getty Images)

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