Will false Trump electors’ attempt to hijack the Georgia vote be punished?

The 16 Georgia Republicans who assembled at noon on Dec. 14, 2020, in the state Capitol and falsely certified that Donald Trump had won the state’s electoral votes were not the nation’s only bogus electors. They made up just one of seven groups falsely claiming Trump was the victor in states where the majority of voters chose Joe Biden for president and Kamala Harris for vice president.

The six other states — Arizona, Michigan, Nevada, New Mexico, Pennsylvania, Wisconsin— joined Georgia in submitting documents to Congress certifying falsely that the majority of votes — and therefore the Electoral College votes — went to Trump.

The documents, all filed by Republicans for Trump, were brought to light through a Freedom of Information Act request by the D.C.-based watchdog group American Oversight, which requested all 2020 certificates of electoral votes that were not already published as the 2020 Electoral College Results.

“Looking at the certificates, there were striking similarities in the language and the formatting between many of them that … points to this not being an original idea,” says Clark Pettig, spokesperson for American Oversight. “These certificates matter because they show in black and white just how far allies of the former president were prepared to go to subvert our democracy. It’s shocking to see it there on the page.”

American Oversight submitted the FOIA records request because there were reports that within the White House, Trump campaign or Republican National Committee, a coordinated effort was being mounted to submit bogus slates of electors. Since the group received those documents, a memo was made public by The Washington Post that came from Trump’s lawyer John Eastman outlining a six-step scheme to get then-Vice President Mike Pence to throw out the 2020 election results on Jan. 6 and give Trump a second term.

That memo relies on these falsified documents — including the one from Wisconsin — to throw the election to Trump.

“When [Pence] gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States,” wrote Eastman. “At the end, he 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—s 454…. 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.”

Two of the seven states included caveats. In New Mexico the wording was slightly altered to be less brazen stating that the documents were being submitted, “on the understanding that it might later be determined that we are the duly elected and qualified Electors…” Pennsylvania Republicans used similarly contingent language.

In Georgia and the four other states, the signatures appeared on the document proclaiming, “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…”

But none of the seven certificates indicated that the signatories listed were an illegitimate slate of electors, not chosen by those states’ voters.

In Georgia, the 16 signatories were Joseph Brannan, James “Ken” Carroll, Vikki Townsend Consiglio, Carolyn Hall Fisher, state Sen. Burt jones – now a candidate for Georgia lieutenant governor, Gloria Kay Godwin, David G. Hanna, Mark W. Hennessy, Mark Amick, John Downey, Cathleen Alston Latham, Daryl Moody, Brad Carver, Georgia GOP Chair David Shafer, Shawn Still and C.B. Yadav.

Pettig says the “phony electors” need to be viewed as one part of a broader attempt to subvert or overturn elections. Other efforts he cites include planting broad distrust in election results, as many Georgia Republican legislators have done.

“I think what we are seeing here on multiple levels, on multiple fronts is a broad effort by the former president and his allies to overturn the election by whatever means possible,” Pettig concludes.

Wisconsin pushback

Wisconsin may be the only state where there is attention being drawn to the falsified documents and the people that signed them, because here Law Forward attorneys Mel Barnes and Jeff Mandell filed a complaint with the Wisconsin Elections Commission nearly a year ago regarding what they deemed “fraudulent electors.” The day after filing the complaint, Barnes, and earlier this month Mandell, also authored columns on the topic for the Examiner.

Much to Mandell’s surprise the issue has received little attention despite the gravity of its implications for future elections and for democracy.  Why does it matter that so many Republicans sat around and cosplayed electors after challenges to the results through multiple court cases, investigations, recounts and audits had not overturned Biden’s win?

Mandell has a lot to say in response to that question.

“There’s no harm in people who are engaged in politics, and who care passionately about public policy, sitting around and being upset that they lost an election or planning how they’re going to win the next one,” he says. “That’s very different from trying to defraud the 3.3 million people in Wisconsin who voted of the value of their votes by trying to convince Congress to credit Wisconsin’s 10 electoral votes and Wisconsin’s role in choosing the president of the United States to the candidate who lost.

“Being a presidential elector is not some toy or prize at the bottom of a box of Cracker Jacks. It is serving as a public official and as an esteemed representative of everyone who voted in Wisconsin.

“And so for these people to try to steal that and try to impersonate that when they didn’t have the right because Wisconsinites chose a different candidate — that’s really, really dangerous and undermines our democracy.”

On Feb. 15, 2021, Law Forward, acting on behalf of its clients, including SEIU and several individuals, sent a letter to Milwaukee County District Attorney John Chisholm and filed a complaint with the Wisconsin Elections Commission. The letter laid out the areas of Wisconsin criminal law the attorneys believe were violated, including forgery, falsely assuming to act as a public officer, misconduct in office and “likely engaging in conspiracy to commit criminal acts.”

Mandell says he cannot prove coordination with Trump allies in the other states, but he adds that looking at the similarities between the bogus documents, “It’s difficult for me to believe … that all of this happened organically in five different states and nobody communicated with each other and nobody had legal advice in common. But we don’t really know.”

The Law Forward letter also states, “Should your office conclude that the fraudulent electors did not accomplish the unlawful goals of their actions, charges may be appropriate against them under Wis. Stat. § 939.32, for attempts to commit a felony or other crime.”

Mandell stresses that Trump’s phony electors only gathered after legal recourse had been exhausted in court cases and recounts that were not resolved in their favor. “There was no dispute left,” he says. “This was purely malicious and fraudulent.”

Today, nearly one year later, there has been no resolution or response to their complaint.

On Nov. 3, 2021 the Elections Commission went into closed session to discuss the matter. The Wisconsin Elections Commission ran into trouble because one of the 10 false electors — Bob Spindell — is a commission member. Mandell asked that Spindell be recused from deliberations as he should not be allowed to act as his own judge, “a pretty fundamental principle of jurisprudence.”

Mandell followed up with a letter to the state Department of Justice after Spindell did not respond in the time period allotted, then later pushed to be in on the WEC meetings where his actions, along with the other nine false electors, were discussed and acted upon. He says DOJ assured him Spindell could not defend his actions in closed session where Law Forward would not be present to respond.

That communication came in Nov. 2021 — and that was the last Mandell heard on the complaint.

Department of Justice spokesperson Gillian Drummond says she can only confirm that “DOJ assistant attorneys general are acting as outside counsel assisting the Wisconsin Elections Commission on this matter,” and could not provide any further update.

At a Nov. 3 WEC meeting that was scheduled to go immediately into closed session on this topic, Spindell complained about being excluded and launched into a defense of his actions as the chair attempted to move into closed session.

He complained at length about “the attempt to disqualify me — an outspoken Republican commission member — from participating in what Law Forward [states] about the so-called fraudulent president electors.”

Then he appeared to blame the Republican Party of Wisconsin and the Trump campaign for his own actions. His statement also appeared to back up the attorneys’ conclusion that it was a coordinated effort across a number of states.

“As an elector I only performed ministerial duties for the Republican Party of Wisconsin and Trump campaign,” fumed Spindell. “I sat there and signed papers as they were passed from person to person. [It was my] first time as an elector that I participated in this function of signing documents.” He added that he was told it was mandatory and necessary according to the Trump and RPW legal opinions in order to preserve Trump’s legal position.

Hawaii 1960

There has been a situation in which two slates of state electors submitted certifications. It took place in Hawaii in 1960. Mandell highlights this — and cites news photos of the event he found — because he believes it shows how things should be handled in “a bonafide, good-faith dispute,” were there ever any question of who was the legitimate victor in a state.

“They did things very, very differently than the fraudulent electors did here in Wisconsin,” he points out. “And I think that’s incredibly important.” He describes a ceremonial room where both slates of electors were present and met in front of the media and public with cameras recording the event. The governor welcomed both sides. “They did it in the light of day and everybody knew exactly what was happening,” he says. “They submitted both sets to Congress.”

Not so in this state in 2020. “Out here in Wisconsin, these people were skulking in the shadows and … there was not, at that point, further bonafide dispute about the outcomes of Wisconsin’s election.”

The situation of fraudulent electors was given some attention last week by Rachel Maddow on MSNBC and Politico, which only included Michigan and Arizona submissions. In Wisconsin, Rep. Jonathan Brostoff and Sen. Chris Larson, both Democrats from Milwaukee, sent a letter to Chisholm calling on him to investigate the situation and take action to “prosecute sedition.”

Brostoff says he was motivated to draw attention to the situation because he didn’t see the state holding fake electors accountable. He also sees what Republicans are doing to discredit the election, as well as authoring bills to make it harder to vote, as a “bait and switch.”

“The perpetrator is trying to get away with something by blaming others,” says Brostoff, expressing frustration that more than a year has passed with no action. “We cannot accept this as normal, responsible behavior, [especially] from people in positions like that. Regardless of how powerful they think they are, no one’s above the law. … We cannot move forward until this is resolved. We have to get to a point where we are building back trust.”

Mandell hopes to see a written report and recommendations soon, but says if the Elections Commission and DOJ are not responsive, the next step is taking the case to Dane County Circuit Court.

“There is a point at which adjudication delayed is adjudication denied,” says Mandell.

He also believes that given the actions from seven states, there may be a need for a national body such as Congress’ Select Committee to Investigate the Jan. 6 Attack to become involved.

And American Oversight — which conducted a deposition with Vos concerning  records tied to his election investigation — plans to continue to push to hold the fake electors accountable.

Pettig says that the people attempting to subvert and overturn elections and make it more difficult to vote aren’t stopping those efforts — so American Oversight doesn’t plan to stop either.

“We’ve been actively investigating the people and networks behind the attempt to overturn the election and then, also, the subsequent attempts to cast doubt on the results through partisan election investigations in different states,” he says.

“There’s still a lot we don’t know about the attempt to overturn the election, who was involved, and if we want to make sure it doesn’t happen again, we need to know the facts,” he says. “So we have continued investigating the bogus election audits in Arizona, the partisan investigation going on in Wisconsin now and other efforts to raise false claims of voter fraud as a pretext for enacting new voting restrictions.”

“I think it’s clear that the people behind the election challenges haven’t stopped,” Pettig adds, “So we are going to continue investigating.”

Georgia Recorder Editor John McCosh contributed to this report.