The ‘fake electors’ and their role in the 2020 election, explained

At the center of investigations into attempts by Donald Trump and his allies to overturn Trump’s loss in the 2020 presidential election are the slates of pro-Trump electors who assembled in seven states that Joe Biden won.

As Trump faces potential criminal charges for the Jan. 6, 2021, attack on the U.S. Capitol and the events leading up to it, more than a dozen Republicans in Michigan just became the first to be charged for falsely presenting themselves as the state’s representatives to the electoral college. Prosecutors say it was an attempt to switch the election results in Michigan, where Biden won by more than 150,000 votes.

Other local, state and federal investigations into this scheme continue. Here’s what these “fake electors” are and how the effort to insert them into the process all ties together with the 2020 election.

Electors - not voters - technically cast votes for president

When you vote for a candidate for president, you’re really casting a vote for a political party’s electors in your state. Those electors will cast votes in the electoral college. Almost all states have laws saying that if a candidate wins the popular vote, that candidate wins the state’s electors. States have different numbers of electors, numbers determined by the states’ totals of representatives in Congress. In the 2020 election, Vermont had three electors and California had 55. To become president, a candidate needs a majority of electoral votes in the electoral college - at least 270.

Electors usually gather in their states about a month after the presidential election to cast their votes for president. Those votes then are sent to Congress for the final certification. (Electors are usually party loyalists, and it is rare for an elector to cast a rogue vote for someone other than the candidate who won the popular vote in their state. In some states, “faithless” electors can be fined or prosecuted for rogue votes or for abstaining.)

This process makes up the electoral college.

Fake electors tried to overturn those results

After the 2020 election, Republicans in seven states that Trump had lost created their own slates of pro-Trump electors to compete with the official state slates of pro-Biden electors.

They falsely declared that Trump had won and that they were the true electors. Some of them signed official-looking documents purporting to be the real electors. Many of them tried to show up to their state capitols on Dec. 14, 2020, the day the legitimate electors met to cast their votes.

In Michigan, Trump supporters were blocked from entering the Capitol in Lansing by a police officer who told them: “The electors are already here - they’ve been checked in.” In Georgia, Trump supporters met quietly in a conference room at the Capitol in Atlanta and were told by a Trump campaign staffer in an email: “Your duties are imperative to ensure the end result - a win in Georgia for President Trump - but will be hampered unless we have complete secrecy and discretion.” In Arizona, pro-Trump electors gathered at the state GOP headquarters and broadcast their meeting on social media, dubbing it “the signing.” Alternative electors also gathered in Nevada, Pennsylvania, New Mexico and Wisconsin.

[Michigan criminally charges 16 fake electors for Donald Trump with election law and forgery felonies]

At the time, most election officials and strategists chalked up the fake electors initiative as a performative effort by Trump supporters to demonstrate their loyalty to his false claims that he had won in the states concerned, writes The Post’s Rosalind S. Helderman.

And many of the pro-Trump electors came ready with a defense: They were simply creating a backup slate in case a court later ruled that Trump had in fact won the state instead of Biden, as happened in Hawaii in 1960.

The Trump electors who met in Pennsylvania and New Mexico, for example, signed a document stating that their votes were to count only if state officials changed the election results.

But by the time this was all happening, almost all of Trump’s court cases challenging the results had been thrown out by judges. And state officials (including Republicans) had certified Biden’s victory in their states.

Why investigators have been probing Trump electors

Investigators have been exploring whether the scheme was something more serious: the first step in a plot to overthrow the 2020 election.

These organizing of illegitimate electors appeared to be a strategy driven by Trump lawyer Rudy Giuliani to sow doubt about the election results in these states - perhaps enough doubt that state legislatures would step in to overturn the popular vote. Later, Trump allies hoped that the existence of these fake electors provided Vice President Mike Pence plausible reason to reject the Biden electors in these states on Jan. 6, 2021, when he presided over Congress’s certification of the election results.

Emails from lawyers and activists connected to the Trump campaign suggested that they helped to recruit local Republican election deniers as electors. Pro-Trump electors included state party chairs and prominent party leaders. Emails suggest that some of them were told to work in secret and that Trump-allied lawyers sometimes questioned the legality of it all but pursued the undertaking anyway.

These fake electors would be “dead on arrival in Congress,” wrote Trump lawyer John Eastman, even though he was an architect of the plan. Eastman and others became more prominent in Trump’s world as they pursued farther and farther-flung theories about how Trump could stay in office.

Some potential false electors backed out rather than join the scheme.

In the end, the plan did fail. Republican state legislatures did not step in to overturn the popular vote, despite pressure from Trump and his allies. And despite enormous pressure directed at Pence, he refused to reject the legitimate electors. But as Pence and lawmakers prepared on Jan. 6 to certify the election results, Trump supporters attacked the U.S. Capitol, threatening Pence’s life.

Why fake electors could be illegal

The main legal question here is: Did these Trump electors break the law by creating alternative slates?

Special counsel Jack Smith is leading the Justice Department investigation into the events leading up the attack on the Capitol, and he seems keenly interested in this question.

In Michigan, the wannabe electors were charged with forgery, conspiracy to commit forgery and election law forgery. Some of the counts carry sentences of up to 14 years in prison. Prosecutors say these pro-Trump electors submitted falsified paperwork to the Senate, the National Archives and Records Administration and t other entities. Prosecutors noted that the pro-Trump electors claimed to have signed the document at the Michigan Capitol when the signing actually occurred at the state GOP headquarters.

“Submitting false records and false statements to official bodies is pretty bread-and-butter crime,” said Kristy Parker, a former federal prosecutor now at Protect Democracy, a nonpartisan advocacy group that focuses on authoritarian threats and building more resilient democratic institutions. She stressed, though, that the fake-electors tactic is likely to be something investigators are studying as one piece of a broader scheme to overturn legitimate election results.

But many involved with the effort and some legal experts say the Trump electors were engaging in normal political behavior that is protected by the First Amendment.

“This is not political theater. It’s not protected speech,” Michigan Attorney General Dana Nessel (D), who charged the pro-Trump electors, told The Washington Post last year. “It’s an attack on the very fabric of our system of government. And so it deserves to have federal prosecutorial and investigative scrutiny.”

The Michigan electors are the first to face criminal charges. Prosecutors in Arizona and Georgia are investigating Trump electors in those states, and civil lawsuits have been filed against electors in Michigan and Wisconsin.

What happened in Hawaii that Republicans keep using as their defense

In the 1960 presidential election, the results in Hawaii were too close to call. Richard M. Nixon was leading John F. Kennedy in the state by just 140 votes, and there was a recount of the whole state. The recount was ongoing as Republican electors met in the state to cast their votes for Nixon, and Democratic electors met and cast their votes for Kennedy, in case he was declared the winner. (He eventually was.)

Legal experts say there is a major difference between what happened then and in 2020: The results in Hawaii were legitimately in question, while Trump’s legal challenges had already been dismissed or soon would be.