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The Republican Party spent decades trying to make it harder for ordinary people to vote under the pretense that it was interested in combating the scourge of election fraud. Conservative lawmakers have used this phantasmal threat to justify passing strict voter-ID laws and limiting access to absentee ballots. In the summer of 2020, Justice Samuel Alito and the Supreme Court’s other conservative justices even ruled that states could cite a fear of voter fraud to defeat Voting Rights Act challenges to potentially discriminatory state election laws.
Then President Donald Trump, his close allies, and a motley crew of state GOP officials carried out the most comprehensive scheme to commit election fraud in American history. During the 2020 election, at the Trump campaign’s direction, Republicans in multiple states organized slates of people who falsely certified that they were duly chosen electors for the Electoral College. Some of them then tried to submit their votes to the Senate and the National Archives to be counted.
The goal was to thwart the will of the American people in electing their next president. Some participants in these schemes have already been charged. Others may still face some sort of legal reckoning. Earlier this week, multiple news outlets reported that Nevada Attorney General Aaron Ford (no relation) is investigating state Republican officials for carrying out a fake elector scheme during the 2020 presidential election. Their aim: to supplant the legitimate choice of Nevadans, who voted to back President Joe Biden, with their own.
As with any such undertaking, the initial details are currently scarce. It is unclear whether Nevada’s investigation is civil or criminal in nature or what, if any, consequences those who participated in this plan might face. No matter the outcome, the case highlights the need for states to impose more precise laws for dealing with future fake elector schemes and other potential coup attempts.
In two other states, prosecutors have already brought charges against the alleged participants in fake elector schemes. Fani Willis, the district attorney of Georgia’s Fulton County, carried out the most sweeping investigation. She charged 19 people for their involvement in a scheme targeting that state’s electors, including Trump himself and some of his closest allies. A handful of the alleged co-conspirators, including lawyers Sidney Powell and Ken Cheseboro, have already struck plea deals with Willis.
Michigan Attorney General Dana Nessel filed charges against fake electors in her own state in July, charging 16 defendants with various forgery and conspiracy-related offenses. (One of them saw their charges dropped last month as part of a plea deal.) The Michigan fake electors took the additional step of submitting their certificates to various government agencies as if they were legitimate. That’s about as clear-cut as it gets when committing election fraud.
“The false electors’ actions undermined the public’s faith in the integrity of our elections and, we believe, also plainly violated the laws by which we administer our elections in Michigan,” Nessel said in a statement when the charges were unsealed. She argued that it would be “malfeasance of the greatest magnitude if my department failed to act here in the face of overwhelming evidence of an organized effort to circumvent the lawfully cast ballots of millions of Michigan voters in a presidential election.”
Other schemes were underway in the interregnum between Election Day and Inauguration Day. One plot involved a lawsuit by the attorney general of Texas that asked the Supreme Court to throw out results in a handful of states on highly dubious legal grounds. The justices unanimously declined to hear the case. Another, more high-profile effort was to persuade Vice President Mike Pence to unilaterally decide the electoral count on January 6, 2021, which Pence declined to do. Trump also called Brad Raffensperger, Georgia’s secretary of state at the time, and urged him to “find” enough votes to declare him the winner.
The semi-interlocking effort was designed to pressure Congress and the courts to either flip or throw out electoral votes. That, in turn, would have either allowed Trump to “win” the election outright or send it to the House of Representatives for a near-certain Trump victory in a contingent election in that chamber. When this strategem failed, Trump supporters stormed the Capitol on January 6 to prevent Biden’s election by force—the first coup attempt against the federal government in the nation’s history.
Trump and his allies tried to justify it by falsely claiming that there was widespread voter fraud. They provided no evidence to support this and ultimately did not care if any such evidence existed. It was a mere pretext for an unconstitutional power grab. “The boss is not going to leave under any circumstances,” Dan Scavino, a top Trump aide, allegedly told Trump attorney Jenna Ellis after the election, according to her testimony in the Georgia case. “We are just going to stay in power.”
Nevada, as one of the battleground states, was central to the fake elector portion of the scheme. “[Trump attorney Ken] Chesebro’s contemporaneous communications make clear that the goal was having Congress act on the fake electoral votes,” the House January 6 committee said in its final report. “He emailed an organizer of the fake electors in Nevada that ‘the purpose of having the electoral votes sent in to Congress is to provide the opportunity to debate the election irregularities in Congress, and to keep alive the possibility that the votes could be flipped to Trump.’”
Six people in Nevada ultimately signed up to be fake electors. They included Michael McDonald, the chairman of the Nevada GOP, and Jim DeGraffenreid, a committee member of the Republican National Committee. They signed fake electoral certificates outside the state Capitol building in Carson City on the same day that the real electors cast their votes inside. McDonald and DeGraffenreid have since testified before a federal grand jury in D.C. about their role in the plot for special counsel Jack Smith in exchange for immunity from federal charges, according to The Las Vegas Review-Journal.
That immunity does not extend to state-level proceedings. But Ford had previously signaled that he might not bring charges against the scheme’s participants because there was no directly applicable law that they broke. “As you all know, I have been silent on Nevada’s fake electors, except to say that the matter was on our radar,” he told state lawmakers earlier this year. “With it on our radar, we ascertained that current state statutes did not directly address the conduct in question—to the dismay of some, and I’m sure, to the delight of others.”
This is a familiar problem when charging participants in the various schemes. Trump, for example, was not charged by the Justice Department with insurrection, the closest analogue to staging a coup attempt in the U.S. Code, for apparent First Amendment reasons. The special counsel’s office instead prosecuted him for conspiracy to defraud the United States and obstructing an official proceeding. The Georgia case, by comparison, is structured as a racketeering case to reflect the most applicable offenses under state law.
To that end, Nevada state lawmakers passed a bill this spring that would criminalize similar schemes in future elections. Senate Bill 133 would have made it a felony to sign false elector certificates or conspire with others to do so. The bill also disqualified anyone convicted of such an offense from serving in state office in the future. The state legislature, which is controlled by Democrats, readily approved the bill.
But Nevada Governor Joe Lombardo, a Republican, chose to veto it after the legislative session ended in May. In a veto statement, he claimed that he supported tougher measures to protect the “sanctity” of the state elections but said the bill’s sentences were too severe for the proposed offense. “Because SB133 does nothing to ensure the security of our elections and merely provides disproportionately harsh penalties for an, admittedly, terrible crime, I cannot support it,” he concluded.
The net effect of all of this is that nobody has to take Republican claims about election fraud seriously ever again. It is clear, especially after January 6, that they served not to protect the electoral process and our democratic system of government but rather as a vehicle to make it easier for Republicans to win elections. Now that they have moved on to trying to overturn them, lawmakers who remain committed to American democracy would be right to update state and federal laws to make future attempts impossible. The republic might not be so fortunate next time.
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