According to Special Counsel Jack Smith’s “January 6th” indictment, Donald Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.” He allegedly did so by organizing “fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), (and) attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors.”
While Smith uses the word “fraudulent” to describe the gathering of these alternate electors, the heart of these allegations lead to a fundamental question – is it illegal to organize alternate electors?
According to Constitutional Law Professor Ed Foley, “(a) key component of the effort to negate Joe Biden’s Electoral College victory…was the submission for congressional consideration of purported electoral votes cast for Trump from seven battleground states…Joe Biden won the popular vote in all these states…(t)he actual electors appointed in these states pursuant to state law, based on the outcome of the state’s popular vote, were those pledged to support Biden, and these electors dutifully cast their ballots for Biden and properly proceeded to send their votes to Congress to be counted on January 6, 2021, as required by the Constitution’s Twelfth Amendment. In contrast, the supposed electoral votes cast for Trump had no official status in any of the states because no institution of state government recognized Trump rather than Biden as having won the popular vote in that state. Mike Pence, as Senate President, would not even let these pro-Trump submissions be opened in the joint session of Congress because, without any claim of any backing from any part of their state’s government, they could not be acknowledged as even asserting to be official electoral votes entitled to be considered by Congress.”
Foley continues; “Since then, the question has arisen whether anyone should be criminally prosecuted in connection with these submissions of groundless pro-Trump electoral votes… there are reasons to be wary of prosecuting any claimed electoral votes sent to Congress… the better course seemingly would be to reject frivolous claims as unworthy of serious consideration…rather than by endeavoring to imprison these frivolous claimants for asserting their preposterous arguments.”
Foley notes that there have been other instances of alternate Elector votes being submitted to Congress. “In 1876, South Carolina was one of three southern states that quickly became disputed after the popular vote had been cast in November. Florida and Louisiana were the other two. The Republican candidate, Rutherford Hayes, needed all three of these states for an Electoral College victory, whereas Samuel Tilden needed just one…In South Carolina…there was no one with any colorable claim of official authority in a position to certify Tilden the winner. Still, Democrats there were claiming that he had won…Tilden’s electors met and voted for him on the congressional designated day for Electoral College balloting. They submitted their spurious electoral votes to the Senate President pursuant to the Twelfth Amendment as though they rather than the Hayes electors were entitled to cast the state’s official Electoral College votes…
“Whatever else was contested during the entire Hayes-Tilden dispute, there was no doubt that the South Carolina electoral votes cast for Tilden were not valid because the individuals who cast them clearly had not been, despite any claims to the contrary, appointed as the state’s electors. The Electoral Commission that Congress created to settle the Hayes-Tilden dispute…agreed unanimously…that the individuals in South Carolina who purported to cast electoral votes for Tilden ‘were not the lawful electors for the State of South Carolina, and that their votes are not the votes provided for by the Constitution of the United States, and should not be counted.’”
Most important to our current analysis, “(d)espite this unanimity, reflecting the patent invalidity of (the alternate South Carolina electors’) claim to be the state’s ‘duly and legally appointed’ electors, none of these South Carolina individuals…were criminally investigated or prosecuted for making this assertion.” In fact, “a couple of years later, during a congressional investigation, evidence emerged that top participants in the Tilden campaign, including Tilden’s own nephew, had engaged in an effort to bribe local election officials in the disputed Southern states, including South Carolina, to alter the election returns. But even this apparent criminality did not result in prosecutions and convictions of the perpetrators, but instead caused Tilden’s political disgrace, preventing him from returning as the Democratic party’s presidential nominee in 1880 as had been his plan immediately after Hayes was inaugurated.”
Then, there is this more recent example; “In 2016, Hillary Clinton won the popular vote by 2.9 million
votes, but lost the Electoral College to Donald Trump. Prior to the Electoral College vote, which Trump was expected to win 306-232, some progressive Democrats proposed getting Republican electors to switch their votes to Clinton or another Republican on the grounds Trump was unfit for office. The effort ultimately failed, as expected, with Trump winning 304-227 after five Clinton electors and two Trump electors switched votes and took on the mantle of ‘faithless electors’ – electors who cast a vote for someone other than their party’s nominee. The effort cost Clinton more electoral votes than it did Trump.”
Under the procedures enacted by the states, for the most part, these Electors were duty-bound to cast their vote for the candidate they were nominated to elect. Yet, contrary to the law, “progressive Democrats” made an effort, in some cases successfully, to convince those Electors to violate the law and their oaths. Were any of these “progressive Democrats” prosecuted for using “unlawful means of discounting legitimate votes and subverting the election results?”
Of course not. Most federal prosecutors have better things to do than become involved in a political process, and prosecute “invalid electors” who’s votes have been rejected by Congress, or those who encouraged the submission of those alternate votes.
Thus, if its not necessarily illegal to submit alternate elector votes, were the means Trump used to gather these alternate Electors “fraudulent?” According to Smith’s “January 6” indictment, “(s)ome fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did.” In particular, Smith cites to Arizona, where Trump “falsely asserted…that a substantial number of non-citizens, non-residents, and dead people had voted fraudulently in Arizona.” Based on this belief, the former President “asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud. The Arizona House Speaker refused.”
According to Smith’s indictment, “(o)n the morning of January 4, 2021, (one of Trump’s attorneys) called the Arizona House Speaker to urge him to use a majority of the legislature to decertify the state’s legitimate electors. Arizona’s validly ascertained electors had voted three weeks earlier and sent their votes to Congress, which was scheduled to count those votes in Biden’s favor in just two days’ time at the January 6 certification proceeding…the Arizona House Speaker explained that state investigations had uncovered no evidence of substantial fraud in the state..(t)he Arizona House Speaker refused (decertification), stating that he would not ‘play with the oath’ he had taken to uphold the United States Constitution and Arizona law.”
Yet, where exactly is the “fraudulent” activity on the part of Trump here?
It is true that the Arizona Attorney General conducted an audit of mail-in ballots and determined that a “hand recount of ballots showed Joe Biden won the election in Maricopa County, cementing his win in Arizona.” However, that audit also showed “issues with duplicate ballots and chain of custody identified by Senate liaison and former Arizona Secretary of State Ken Bennett as matters the AG should take up.” These included problems “found with Maricopa County’s voter rolls, such as 5,047 voters who may have cast ballots in more than one county; voters with incomplete names, and 198 people who registered to vote after the Oct. 15 cutoff date but nonetheless cast a ballot.”
In fact, in September of this year, Arizona Superior Court Judge John Napper ruled that “state law requires county recorders to match mail-ballot signatures with signatures in the voter’s ‘registration record,’ the Secretary instructed them to use a broader and less reliable universe of comparison signatures. That means the Secretary was requiring ballots to be counted despite using a signature that did not match anything in the voter’s registration record. This was a clear violation of state law.”
In other words, Arizona “is conducting signature matching in an unlawful manner,” which would tend to support former President Trump’s assertion that “a substantial number of non-citizens, non-residents, and dead people had voted fraudulently in Arizona.”
Is the fact that Arizona was using an illegal method of verifying the signatures of mail-in voters conclusive proof of election fraud at a substantial enough level to have altered the results of the 2020 Presidential election? Not in and of itself. But would such evidence provide some basis for a reasonable belief that a further investigation is necessary, and that the certification of the election results by Arizona was premature?
Of course it would. But despite this evidence, Jack Smith asserts that Trump’s actions were “fraudulent” and intended to “subvert” the results of the 2020 Presidential election.
Let us give the last word on this issue to Hugh Hewitt, writing in the Washington Post; “Smith might have a much harder time proving his case than he and Trump’s many and most vociferous detractors realize… When the ‘beyond a reasonable doubt’ standard is applied, I don’t see a conviction on any of the charges Smith leveled.”
Judge John Wilson served on the bench in NYC
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