After the 2020 election, seven states saw losing slates of Republican electors still show up in state capitals and send their votes to Congress. These electors–sometimes labeled “fake,” “alternate,” “contingent,” or “fraudulent,” depending on one’s priors–never had their votes counted, or even seriously considered in Congress. As originally conceived, it appeared their votes might have been simply to “preserve” their litigation position in the event things turned their way. But in some places no cases were pending, and others had no serious or non-frivolous claims. By January 6, 2021, supporters of President Donald Trump pointed to the mere existence of these alternative slates of electoral votes as evidence worthy of further investigation.
In 2022, I wondered here about what should happen to these electors. I wrote then:
In short, I don’t have easy answers about how to square these matters. I know states are investigating how to prosecute these claims. Congress might be investigating, too. Some are much more obvious falsehoods, like purporting to meet in the Capitol when they didn’t. But others look more like “preserving” challenges a la 1960. How much that matters in 2020 remains an open question (as is what lessons it might yield for Electoral Count Act reform before 2024).
Criminal prosecutions have certainly ensued.
Of the seven slates, two–New Mexico and Pennsylvania–explicitly included language in their certificate that the votes they cast should only be counted if a court found that they were the “duly elected and qualified electors.” That contingency language has meant that neither slate faced criminal prosecution.
In the other five states–Arizona, Georgia, Michigan, Nevada, and Wisconsin–the electors have faced criminal prosecution. But many have stumbled.
In Arizona, the indictment was found to violate the state constitution. The judge said a prosecutor has a duty to tell grand jurors all the applicable law and concluded the defendants were denied ‘a substantial procedural right as guaranteed by Arizona law.’” The court of appeals declined to take up the case. The attorney general has appealed to the state supreme court.
In Georgia, many of the counts have been dismissed by the courts. While some have immunity deals, a scandal involving prosecutor Fani Willis, now disqualified from the case, slowed the matter to a crawl; Georgia has since dropped the case.
In Michigan, a judge threw out the charges on the ground that the prosecutors failed to demonstrate evidence of intent. Given that Attorney General Dana Nissel publicly proclaimed that the electors were “brainwashed,” demonstrating intent from them (as opposed to other members of Trump’s legal or political team) proved to be a challenge.
In Nevada, the charges were dismissed because prosecutors were too aggressive with venue. They brought the indictment in Las Vegas, but the acts in the case arose in Carson City, and the indictment, a court found, was invalid. The case was refiled and remains pending, but the Nevada Supreme Court later reversed the venue finding, so the indictment can return to where it began.
Only Wisconsin’s prosecution has (thus far) remained on track.
In a politically contentious set of cases, one would have hoped to see more buttoned-up prosecutions. So far, that does not appear to be the case. We are still some time away from any of these cases actually reaching trial, but it’s worth reflecting where these cases stand, five years removed from their conduct.
