During the tumultuous two months after the 2020 presidential election, groups of Republicans in seven states won by Joe Biden convened and falsely claimed that Donald Trump was or might be the legitimate receiver of their state’s Electoral College votes.
The attempts, which seemed to be coordinated by high-ranking members of Trump’s campaign staff in many instances, were unsuccessful. On January 6, 2021, Congress refused to recognize any of the illegal results.
However, the conduct of such organizations throughout the United States may have been unlawful.
Attorneys general in at least two of the seven states where the Republicans convened, Michigan and New Mexico, said federal prosecutors have been directed investigations into the distinct slates of electors.
“Electoral rules are the bedrock of our democracy and must be followed,” New Mexico Attorney General Hector Balderas said in a statement to NPR, confirming his referral of the case to US Attorney Fred Federici.
According to public records requests and subsequent revelations by the left-leaning watchdog organization American Oversight, Republicans in Arizona, Nevada, Georgia, Pennsylvania, and Wisconsin also submitted bogus Electoral College results.
Those attempts were exposed immediately after the election, but for a variety of reasons, they’re now being scrutinized again.
According to Rep. Bennie Thompson, D-Miss, the chairwoman of the House committee entrusted with investigating the assault on the Capitol on Jan. 6, 2021, they are the focus of the investigation.
Last Monday, the committee subpoenaed two high-ranking Trump campaign staffers, Rudy Giuliani and Boris Epshteyn, who were allegedly engaged in the conspiracy. Epshteyn told MSNBC on Friday that he was participating in the endeavor, and Giuliani’s role was revealed in the Washington Post and CNN last week.
“We’re worried that paperwork has been submitted claiming that these people are responsible for conducting and certifying elections when they are not,” Thompson said on CBS over the weekend. “And falsifying paperwork is, in most cases, a criminal offense.”
After more than a year without any legal implications, Balderas and Michigan Attorney General Dana Nessel said this month that there might be legal ramifications for those in Trump’s circle who attempted to reverse the election.
Some legal experts are sceptical that there will be repercussions.
Because there aren’t clear regulations that criminalize the precise activity, Ben Ginsberg, a prominent Republican election attorney, said it’s “very doubtful” that anybody participating in the conspiracy to submit bogus election results faces prison time.
Nessel of Michigan suggested forgery and conspiracy against the United States as potential indictments, but Ginsberg said the events of 2020 don’t fit well.
“What happened was definitely purposefully false,” Ginsberg told NPR. “However, I believe it is one of those areas that people who framed the laws did not consider, so the precise legislation is not immediately clear — as horrible as this was.”
According to Ginsberg, this circumstance is itself a reason for amending the Electoral Count Act, which oversees the process of certifying presidential elections.
When it comes to addressing electoral disputes, the legislation is notoriously ambiguous, which opens the way for situations like 2020, when a losing party might submit a rival roster of electors in the hopes of exploiting flaws in the badly designed statute.
The case for amending the 1887 legislation is gaining traction in Congress, and Ginsburg believes that doing so would go a long way toward preventing losing parties from using similar methods in the future.
“The integrity of the individuals participating is the cornerstone to the election system,” Ginsberg added. “There is no way to legislate for every kind of wrongdoing. All you can do now is tighten the process’s guardrails.”