Five of the 19 defendants indicted by Fulton County District Attorney Fani Willis are alleged to have been involved in the so-called fake elector scheme, in which alternate electors pledged to support Donald Trump cast ballots on December 14, 2020—the date on which electors across the country had to show up at their respective state capitols to cast their ballots—in six states, including Georgia, in which Joe Biden had been declared the winner. But rather than being fake electors, per Willis, these five considered themselves to be contingent electors—they thought they were casting ballots for Donald Trump to preserve the effectiveness of such a vote should Trump prevail in his legal challenges to the conduct of the election.

Among the five: Kenneth Chesebro, an appellate lawyer who worked for the Trump campaign and who is called “Co-Conspirator 5” in the federal indictment returned by Special Counsel Jack Smith involving the 2020 presidential election. He’s credited with devising the scheme. His trial, along with Sidney Powell’s, is currently scheduled to commence on October 23 in Fulton County Superior Court before Judge Scott McAfee. 

The other four, who are alleged to have followed Chesebro’s advice and executed that scheme in Georgia, are a lawyer in Atlanta representing the Trump campaign (Ray Smith) and three of the 16 electors who cast ballots that day for Trump (David Shafer, Cathleen Latham, and Georgia State Senator Shawn Still). Of the remaining “fake” electors, twelve were granted immunity by Willis in return for their cooperation, and one (current Lieutenant Governor Burt Jones) remains under investigation by a special prosecutor after Willis’s office was disqualified from continuing to investigate him after it came to light that she had hosted a fundraising event for Jones’s Democratic opponent in the Lieutenant Governor’s race. 

So what was Chesebro’s advice, and how strong is the case against these five defendants?

Chesebro’s So-Called Scheme

In three memoranda—dated November 18, December 6, and December 9—addressed to a former judge and campaign attorney for President Trump in Wisconsin, Chesebro opined that, based on his analysis of the law and historical precedent, the “real deadline” for a finding by either state courts or the state legislature as to who the true winner was in that particular state was not the date on which the electors convened in their respective states to cast their ballots and submit them to Congress, but rather was January 6, 2021, the date (per 3 U.S.C. § 15) that Congress was to meet in order to count the electoral votes that had been submitted to it—and determine their validity.

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On that date, which was set by a federal statute, the Twelfth Amendment provides that “[t]he President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” This view, he noted in his first memorandum, was supported by Justice Ruth Bader Ginsburg in her dissenting opinion in Bush v. Gore (2001) and by noted liberal constitutional scholar Laurence Tribe in an article he wrote in the immediate aftermath of the hotly contested 2000 presidential election pitting then-Governor George W. Bush against then-Vice President Al Gore.

In states in which election contests were still pending, Chesebro recommended, electors pledged to the Trump-Pence ticket should show up to cast their ballots on the same date and in the same manner as those electors pledged to the Biden-Harris ticket. While noting that “[i]t may seem odd” that electors pledged to the Trump-Pence ticket do this if, on that date, “the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued,” he continued that this was “a reasonable course of action,” because it is “highly uncertain” that “Congress could validly count electoral votes cast on a later date.” He cited what happened in 1960 in Hawaii, discussed below, as precedent for his recommendation.

In his second memorandum, Chesebro acknowledged that this was “a bold, controversial strategy” which would focus public attention on “the evidence of electoral abuses by the Democrats, and would also buy the Trump campaign more time to win litigation that would deprive Biden of the electoral votes and/or add to Trump’s column.” He noted, though, that Van Jones and Larry Lessig, two noted liberal legal scholars who thought the final result in Pennsylvania might not be known by December 14, had just penned an op-ed on CNN.com urging the Biden-Harris electors in Pennsylvania to do exactly what Chesebro was suggesting the Trump-Pence electors do in the six states where Trump was contesting the results.

In his third memorandum, Chesebro outlined what the Trump-Pence electors would have to do in each of the contested states in order “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.” Because of the possibility, however slim, that Trump might have ultimately prevailed in his pending legal challenge in Georgia and the ballots cast by the 16 electors pledged to support him might have been validated and counted, I believe that the term “contingent” electors is far more accurate than “fake” electors.

What Happened in Georgia

On November 20, 2020, Governor Brian Kemp and Secretary of State Brad Raffensperger certified the results of the election, which indicated that Joe Biden had won the state by 12,670 votes (a margin of 0.26%). President Trump immediately demanded a recount, and, on December 4, Trump and David Shafer, a Trump elector and then-Chairman of the Georgia Republican Party, filed a lawsuit in Fulton County Superior Court contesting the results of the election.

On December 7, Raffensperger announced that the recount had narrowed the differential to 11,779 votes (a 0.24% margin) but had not changed the outcome. Governor Brian Kemp again certified the results, and he and then-Lieutenant Governor Geoff Duncan issued a statement acknowledging that Trump’s legal challenge remained a “viable—and quickest—option” for contesting the outcome.

On December 9, the court issued an order saying that it would consider Trump’s legal challenge “in the normal course.” This posed a dilemma since electors had to gather together and cast their votes on votes on December 14, in accordance with a federal law (3 U.S.C. § 7) which requires that presidential electors “of each State shall meet and give their votes on the first Tuesday after the second Wednesday in December” at the location designated by each state. If the 16 Trump electors did not show up and vote that day and Trump ultimately prevailed in his legal challenge, he would have had no remedy, not only depriving him of the 16 electoral votes to which he would be entitled as a matter of law, but also depriving Georgia of the opportunity of having its 16 electoral votes count at all.

There is also no question that had Trump actually prevailed in his legal challenge, he would have been entitled to Georgia’s 16 electoral college votes, notwithstanding the fact that Governor Brian Kemp had previously certified the Biden-Harris ticket as the winner. Georgia law explicitly provides (in Section 21-2-503(a) of the Official Code of Georgia):

A commission which is to be issued, as provided for by this chapter, to any person elected to any office shall be issued notwithstanding the fact that the election of such person to any such office may be contested in the manner provided by this chapter. Whenever it shall appear, by the final judgment of the proper tribunal having jurisdiction of a contested election, that the person to whom such commission shall have been issued has not been elected legally to the office for which he or she has been commissioned, then a commission shall be issued to the person who shall appear to be elected legally to such office. The issuing of such commission shall nullify the commission already issued; and all power and authority first issued under such commission shall thereupon cease. 

Seeking to avoid this, Trump and Shafer filed an emergency petition with the Georgia Supreme Court on December 11 seeking timely relief. That petition was denied the next day.

Having not been granted relief, but with the election contest still pending in court, the 16 contingent Republican presidential electors, accompanied by Ray Smith, met at the statutorily prescribed place, date, and time—the State Capitol on December 14 at noon—to cast their votes for Trump. With members of the media present, Shafer stated that Trump’s election contest was still pending in court and they were meeting that day to cast their votes for Trump “in order to preserve his rights,” should he ultimately prevail. He further stated that if they did not do so, Trump’s “election contest would effectively be abandoned.” This point was confirmed by Ray Smith, who added that they would proceed in the manner prescribed by the Constitution and in a manner “similar to what happened in 1960 in Hawaii.”

The Electoral Count Act

The Electoral Count Act is a federal law setting forth procedures for the counting of electoral votes following a presidential election and for resolving any lingering election disputes. It was in place in its unamended form following the 2020 election, but was substantially amended through the Electoral Count Reform and Presidential Transition Improvement Act of 2022.

In 1876, our country experienced a presidential election between Samuel Tilden (the Democratic nominee) and Rutherford B. Hayes (the Republican nominee) that was even more chaotic than our last one. In an election noteworthy for heavy turnout, violence, and widespread allegations of voter fraud, Tilden carried the popular vote, but the results of the electoral college vote were in doubt. While Tilden won 184 electoral votes to Hayes’s 165 votes, four states (Florida, Louisiana, South Carolina, and Oregon) with a total of 20 electoral votes submitted two slates of electors, one voting for Tilden and the other voting for Hayes.

To resolve the resulting crisis, Congress established a 15-member Electoral Commission composed of five senators, five representatives, and five Supreme Court Justices. The election dispute was not settled until two days before inauguration, when, by an 8-7 vote among the Commissioners (which may have been the result of an infamous deal in which Hayes was awarded the votes based on a handshake agreement that he would remove federal troops from southern states that were still occupied following the Civil War), all 20 votes were given to Hayes, who was declared the winner.

Anxious to avoid a repeat of that election, Congress set about the task of crafting the Electoral Count Act. (This task had actually begun in 1873 in response to problems that arose during the 1872 election in which objections were raised during the joint session of Congress to the electoral votes that were cast in five states.) After much debate, the bill was finally passed in 1887 and signed into law by President Grover Cleveland.

In the indictment, Fani Willis alleges that Shafer, Latham, and Still, acting in cahoots with Smith and others, “cast false Electoral College votes” on December 14, 2020, implying that the election dispute had been settled and that what they did was impermissible under the Electoral Count Act. But was it?

One of the reasons it took so long to pass the Electoral Count Act was that there was a great deal of disagreement about who should decide which electoral votes should be counted during hotly contested, highly partisan presidential elections such as the 1876 election. One group of legislators believed that the states should be the ultimate arbiters of whose electoral votes should be counted and that Congress’s role should be purely ministerial. An equally determined group believed that it should be up to Congress to resolve such disputes. All sides recognized that it was also possible that a Congress, consisting of two independent houses, might not agree as to whose votes should count.

What emerged was a compromise in which both the states and Congress had a role to play on such occasions, and which depended on whether election disputes in a given state had been resolved in a timely manner and whether, failing that, both Houses of Congress agreed on whose votes should be counted.

Three things, however, are clear.

First, the Electoral Count Act envisions situations in which dual slates of electors are submitted from a state. Second, losing candidates can file lawsuits contesting the results of a presidential election. And third, if those lawsuits are not resolved in a timely manner, Congress is given the opportunity to resolve the dispute and choose whose electors should be counted, even if that state’s governor has issued a certificate declaring one candidate to be the winner.

One problem that became apparent following the 1872 election was that there was insufficient time between election day and the day of elector balloting to resolve election disputes. Congress extended the time period between the two dates and provided states with a strong incentive to resolve any ongoing election disputes during that time period (recent amendments to the ECA have created new expedited judicial procedures to increase the likelihood that this occurs).

Congress recognized that a state governor might certify one candidate as the winner, but that the “losing” candidate would have the right to challenge the election, essentially contesting the validity of that certification. To incentivize states to resolve judicial disputes promptly, Section 2 of the ECA of 1887 creates a “safe harbor” date, which provides that a state’s determination of the ultimate winner shall be conclusive so long as all outstanding judicial decision and disputes are finalized at least six days prior to the date of elector balloting. Failing that, Congress is given the next opportunity to resolve the dispute. As previously noted, Trump’s legal challenge was still pending in Georgia on both the safe harbor date and on the date for elector balloting.

In other words, Georgia missed the safe harbor date of December 8, and it fell to Congress to try to resolve the matter on January 6 when it convened in the Capitol to count the electoral college votes. This does not mean, of course, that a governor’s certification or a judicial decision issued after that date may not be persuasive to the Members of Congress, but it would not be conclusive. Under such circumstances, the only way that a “losing” candidate could have his slate of electors considered by Congress on January 6 would be if they showed up—as the Georgia contingent electors did—to cast their votes on elector balloting day, December 14.

Moreover, the Electoral Count Act clearly anticipates that, on occasion, this will likely happen. Section 4 of the Act contains two references to instances in which “more than one return or paper purporting to be a return from a State” was submitted to Congress. If a state fails to meet the safe harbor date and multiple slates of electors were submitted from a state, “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 . . . .” The Act continues, though, that if the two Houses disagree as to whose electoral college votes should be counted, “then [but only then] the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”

Historical Precedent

As stated earlier, both Kenneth Chesebro and Ray Smith referenced what happened in Hawaii in 1960 following the presidential election as applicable precedent for what they recommended and what they did. So, what happened in Hawaii in 1960?

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The presidential election that year between Richard Nixon and John Kennedy was also hotly contested in many states, including Hawaii with its three electoral college votes. Shortly after the election, Nixon was declared the winner there by 141 votes, and the acting Governor (and then-Lieutenant Governor) James Kealoha certified him as such. The Kennedy campaign filed a legal action contesting the outcome and citing alleged irregularities. That election contest was still pending and unresolved on December 19, 1960, the date the electors were to meet to cast their ballots. What happened that day at the Hawaii state capitol building bears a striking similarity to what happened at the Georgia Capitol on December 14, 2020. Three electors pledged to Richard Nixon and his running mate (Henry Cabot Lodge, Jr.) showed up to vote that day, as did three “fake” electors pledged to vote for the Kennedy-Johnson ticket, and both sets of electors cast their ballots in the precise way that Shafer, Still, and Latham, and their 13 colleagues did, that is to say, in the way prescribed by the Constitution and the ECA.

After the safe harbor day had passed, but before the electors were scheduled to meet, Judge Ronald Jamieson, who was overseeing the case, ordered a recount in 37 of Hawaii’s 240 precincts, which was completed on December 28, resulting in a narrow Kennedy win (105 votes). Since Kennedy had prevailed in his judicial challenge, Governor William Quinn re-certified the election in his favor and transmitted the new Certificate of Ascertainment on January 4, which Congress received on the morning of January 6, the day it was scheduled to meet to count the electoral votes. Richard Nixon, acting in his role as President of the Senate, presided over the proceeding. Opting not to contest the amended certificate, Nixon asked for, and received, unanimous consent to count Hawaii’s three electoral college votes for Kennedy.

Again, had the Kennedy-Johnson electors not shown up on December 19, 1960, to cast their votes, Kennedy would have been left with no remedy, and Hawaii might have been deprived of the opportunity to have its voice heard through its electoral votes in that election.

Many considered this a model for how to proceed when very close elections are contested. So much so that in 2000, citing this example, Representative Patsy Mink of Hawaii urged the Gore campaign to submit its own slate of electors for the state of Florida in light of the myriad legal challenges that had occurred in that state.

Conclusion

What if Fani Willis had been the District Attorney in Hawaii in 1960 and the Kennedy lawsuit had failed? Would she have labeled the three contingent electors who showed up and voted for the Kennedy-Johnson ticket, the campaign lawyers who filed the lawsuit and advised those electors, and quite possibly John Kennedy himself as “racketeers” and indicted them for forgery, impersonating an officer, making false statements, and engaging in a conspiracy to steal the election? Would she have indicted Congresswoman Mink in 2000? What about the Al Gore supporters who tried to convince Bush electors to vote for Gore in 2000, or Senator Barbara Boxer and Representative Stephanie Tubbs Jones who objected to the certification of the Ohio electors who voted for Bush in 2004 because of alleged problems with the voting machines in Ohio on election day? Or the Hillary Clinton supporters who tried to convince Trump electors to vote for her in 2016?

We’ll never know what Willis would have done in those instances. But we know what she has done here.  In my opinion, this is an injustice!