The special grand jury in Fulton County appears poised to recommend charges for the fake electors in Georgia around the 2020 election, but there were a total of seven states where the fake electors tried to defraud the government.
Writing for the Brookings Institute, impeachment lawyer Norm Eisen and researcher Colby Galliher explained that there is enough evidence of potential charges for criminal wrongdoing. Yet, most states have been quiet about the fraud.
"The false electors signed their names to documents that claimed they were 'duly elected and qualified' electors from their state (implying President Trump won the popular vote in their states, when he did not)," the men wrote. "Then those documents were submitted to Congress and the National Archives, raising the question of whether the false electors may have violated state laws in jurisdictions other than Georgia."
Along with Georgia, fake electors conspired in New Mexico, Pennsylvania, Arizona, Michigan, Nevada, and Wisconsin. The final four, however, are the strongest cases, the report explained.
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In Michigan, the attorney general referred the case to the Justice Department very early on in the process as it became clear that it was a multi-state conspiracy. That doesn't mean that the state can't usher in its own charges.
There the Trump campaign told state Republican Party Chair Laura Cox that 16 Republican electors "sought to hide overnight in the state capitol to fulfill requirements under state law that electoral votes be cast in official chambers." When they met on Dec. 14, 2020 and signed a document claiming they were "duly elected and qualified electors," it was a forgery of public records and "creation, filing, or publication of false documents 'with the intent to defraud.'”
“It is our hope that the Department of Justice will pursue this because we think it's really the best venue for it from a jurisdictional standpoint,” Attorney General Dana Nessel said. “We think it's important because it allows for the federal authorities to determine if there … was a multi-state conspiracy.”
She added that her office might still proceed with its own charges if the federal government doesn’t prosecute.
In Arizona, the local news reported in September that a judge's ruling brought the fake electors one step closer to jail. It's because a judge agreed that all of the phone records of the electors should be turned over to the Jan. 6 committee. Party chair Kelli Ward refused to answer any questions, using her Fifth Amendment right against self-incrimination. Before the 2020 election, the Arizona Attorney General took a hands-off approach. The new AG isn't an election denier, so it's unclear whether the state will look to prosecute the fake electors.
Nevada's GOP chair had his phone seized by the FBI for the Justice Department's investigation into the fake electors. But at the state level it's unclear whether the six fake electors committed fraud when they asserted in writing they were “duly elected and qualified Electors for President and Vice President of the United States of America from the State of Nevada.”
Eisen explained, "Nevada laws also prohibit individuals from performing the duties of public officials without authorization and legitimate public officials from 'mak[ing]…a false certificate.'" It would give Attorney General Aaron Ford the option to pursue state charges.
Ford said in Jan. 2022 that the case was on his radar, but since then he has been dead silent.
In Wisconsin, protesters gathered in July 2022 demanding that the state act on the fraud, not from the attorney general, but from the Dane County District Attorney Ismael R. Ozanne. The nonprofit group Law Forward sent its first letter to the DA in Feb. 2022 asking that officials take steps to charge the fake electors. Other than the ongoing complaints, neither the state nor the DA has announced action.
In the New Mexico case, it was reported Monday that the Justice Department sought communications with the secretary of state.
"State Attorney General Hector Balderas, earlier this year, referred to federal law enforcement allegations that Republicans in New Mexico submitted a false document intended to deliver the state’s presidential electors to Trump, even though he lost the race by 11 percentage points," the Albuquerque Journal reported.
As early as Jan. 2022 SourceNM was listing off the laws that were broken by the fake electors with their plot. While the AG has referred the fake electors to the Justice Department and an investigation is underway, there haven't been any reports about movement on state charges.
In both New Mexico and Pennsylvania, Eisen explains, "the false electors added qualifiers to their certificates that attempt to condition the certificates’ legitimacy on favorable decisions in concurrent court challenges to the election results. In other words, the certificates purported only to take effect if Trump won his post-election litigation challenges. Those cases are not as strong."
So, for Pennsylvania, the Justice Department's new special counsel, Jack Smith, has subpoenaed details from those involved as part of the multi-state conspiracy.
"That disclaimer may bear upon investigation to determine the application of state laws prohibiting perjury or barring interference with elections, including 'conspir[ing] with others . . . in any manner to prevent a free and fair primary or election,'" the analysis cited. "Two of the state’s false electors were subpoenaed in 2022 by the January 6 Committee."
Not much more has been done at the state level beyond that.
The analysis closed by saying that the fact that the Justice Department, Jan. 6 committee and the special counsel are investigating these cases doesn't mean that local or state officials can't. In fact, they explained, it happens all the time, using Georgia as an example.
