About those Wisconsin 'fake electors': They had sound reason to vote for Trump in 2020

[Leroy N. Soetoro]

https://www.msn.com/en-us/news/opinion/about-those-wisconsin-fake-
electors-they-had-sound-reason-to-vote-for-trump-in-2020/ar-AA1mUiRp

There’s an increasingly familiar – and dangerous – way in which the
news media and the public are referring to the presidential electors who,
in 2020, gathered to cast their ballots even though the election had not
been called for their candidate, Donald Trump. These electors are called
“fake electors.” They have been prosecuted in Georgia and Michigan. They
are the target of civil suits here in Wisconsin.

And while, in many cases, the actions of electors in other states were
wrong, we all need to recognize a critical truth: That sometimes, it is
completely appropriate for presidential electors to meet and cast their
ballots, even if their candidate has not yet been declared the winner in
the presidential election. And that “sometimes” was true here in Wisconsin
in 2020.

The reason is built into the Constitution. The Constitution gives Congress
the power to say both when presidential electors are chosen (Election Day)
and when presidential electors cast their ballot (Electors Day). Then,
Congress, on Jan. 6, counts the ballots cast on Electors Day to determine
who will be the next president.

1856 snowstorm stopped Wisconsin electors from meeting
The challenge is that the vote in a state might not be finally determined
by Electors Day. That was the story in Hawaii in 1960. Richard Nixon had
been declared the winner just after the polls were closed. John Kennedy’s
team noticed tabulation errors in the final count. They challenged the
results, but that challenge was not resolved by Electors Day.

So Kennedy’s electors, as well as Nixon’s electors, gathered in separate
places on Electors Day, and each cast their ballots. Kennedy was finally
determined to be the winner of the 1960 election in Hawaii. A special
plane raced the newly certified results to Washington, arriving on the
morning of Jan. 6.

This history reveals an important fact about our system for counting
electoral votes. Those votes can only be counted if they were cast on a
particular day.

In 1856, a snowstorm blocked electors in Wisconsin from meeting on
Electors Day. They were only able to cast their ballot the following day.
Congress spent two days debating whether Wisconsin’s votes could be
counted at all. In the end, it didn’t matter to the result, so Congress
left the question unresolved (the votes were not added to the total).

Trump's legal options not exhausted when electors gathered
Yet no lawyer for any presidential candidate would ever risk whether
Congress would count electoral votes cast on a day other than Electors
Day. That’s why in 2020, a lawyer working for Donald Trump, Kenneth
Chesebro, recommended to a former Wisconsin judge, James Troupis, that the
campaign ensure that in any contested state, Trump electors meet and cast
their ballot for Donald Trump.

At least as conceived, that recommendation was solely for the purpose of
assuring that if any of the many judicial challenges then being waged
across the country were to prevail, there would be ballots for Donald
Trump available to be counted on Jan. 6.

Chesebro knew of what he spoke: In 2000, he had worked for Democratic
presidential nominee Al Gore in Florida. But the Gore team never bothered
to have the Florida electors meet and cast their ballots. Had the results
in Florida been reversed, Congress would have had no votes from Gore to
count on Jan. 6.

No doubt, there are limits to this rule. In New Mexico, though Joe Biden
had won the state by almost 11 points, the Trump campaign filed a legal
challenge to the results 15 minutes before the Trump electors met to cast
their ballots. That challenge was obviously not in good faith. It,
therefore, gave the electors no legitimate reason to meet and cast their
ballots.

Wisconsin was a closer call. The Wisconsin Supreme Court had ruled against
Donald Trump on the morning of Electors Day, 15 minutes before electors
were to vote. That decision was clear but not technically final: Lawyers
representing Donald Trump still had the chance to ask for a rehearing.

That rehearing would only have happened after electors were to vote. Given
the rules of the Constitution, the decision of the Wisconsin Republican
electors to meet and vote was, therefore, completely reasonable. If the
state court re-heard the case and changed its mind, or if pending federal
litigation had ordered a different result, that would have been the only
way for Wisconsin’s electoral votes to be counted. If the electors
believed in good faith that their legal claims had merit, it was right for
them to meet and vote on Electors Day.

'Fake elector' not a blanket term to throw on all cases
Ten of those Wisconsin electors have now agreed, in a settlement of a
civil suit, that they were part of a plot to overturn the 2020 election.
But importantly, they insisted that at the time they voted, they believed
they were voting to assure that if ongoing litigation were resolved in
Trump’s favor, their votes would count.

They were “tricked,” as the then-chairman of the Republican Party, Andrew
Hitt, put it. But what matters to the Constitution is their good faith at
the time they acted – which no one has suggested was anything other than
appropriate.

This reality suggests that we all need a better way to think about the so-
called fake electors. Yes, it made no sense for Trump electors to meet and
cast their ballot in New Mexico in 2020, just as it would have made no
sense for Biden electors to meet and cast their ballot in Louisiana in
2020.

In neither case was there any chance that their candidate could be
declared the winner; in neither case was there any chance that their votes
would count; therefore, in neither case could the electors have had a good
faith belief that their candidate would prevail.

But where there is a good faith question about who the winner in a
particular state is, state law should have no power to restrict whether or
how presidential electors gather and vote. Their power is federal. They
are performing a federal function. State law cannot control that federal
function.

Indeed, in any genuinely contested election, electors from both sides
should meet and cast their ballots openly going forward. (The Wisconsin
group met in secret and had armed security.) As the Trump electors in
Wisconsin did in a legal filing made before Electors Day, the electors for
the candidate then challenging the results should openly acknowledge their
vote is for the contingency that the results would change. This is the
only way to be sure that on Jan. 6, Congress has the power to certify the
result for the candidate who has actually won the election.

And under the new Electoral Count Act, trying to focus on the future,
these extra ballots create no risk, because the only ballots Congress can
count are those that are eventually certified.

Close elections are America’s future. We should not force states to decide
their results before it is constitutionally necessary. Hawaii showed the
nation how it could buy an extra two weeks to ensure that the right
candidate received the certified results. Fears about “fake electors”
should not obscure that clever innovation.

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at
Harvard Law School. He is the author, with Matthew Seligman, of "How to
Steal a Presidential Election." This column first published in the
Milwaukee Journal Sentinel.

This article originally appeared on Milwaukee Journal Sentinel: About
those Wisconsin 'fake electors': They had sound reason to vote for Trump
in 2020


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We live in a time where intelligent people are being silenced so that
stupid people won't be offended.

Durham Report: The FBI has an integrity problem. It has none.

No collusion - Special Counsel Robert Swan Mueller III, March 2019.
Officially made Nancy Pelosi a two-time impeachment loser.

Thank you for cleaning up the disaster of the 2008-2017 Obama / Biden
fiasco, President Trump.

Under Barack Obama's leadership, the United States of America became the
The World According To Garp. Obama sold out heterosexuals for Hollywood
queer liberal democrat donors.

President Trump boosted the economy, reduced illegal invasions, appointed
dozens of judges and three SCOTUS justices.