Governor Evers is calling for the criminal prosecution ten Republicans who served as an alternate slate of electors for Donald Trump following the 2020 election, but as Dan O’Donnell reports, even Evers’ own Justice Department acknowledges that they did nothing wrong
@danodonnellshow The Fake Controversy Over The Fake Electors “If that recount would have confirmed Nixon’s victory, should Kennedy’s electors have faced criminal prosecution? No reasonable person would think so, as they were convened… Click To Tweet
August 16, 2023
Perspective by Dan O’Donnell
On Saturday, just a week after calling for the prosecution of Wisconsin’s so-called “fake electors,” Governor Tony Evers sent out a fundraising email bragging about his “fight to protect our democracy.”
“Do you agree that these fake electors must be held accountable?” the email continues. “If you do, sign our petition to stand with Tony.”
Oh yeah, nothing says “battling the enemies of freedom” like padding that Democratic Party mailing list ahead of the presidential election cycle. Evers’ email is thus highly instructive, revealing the craven politics at the heart of his sudden move to criminalize the perfectly legal behavior of the ten Republicans who are more accurately described as Wisconsin’s alternate slate of electors.
“To have 10 people meet in secret in the Capitol, there has be some accountability,” Evers said during a visit to a farm in Menominee earlier this month, adding that his Department of Justice “will be involved” in the federal government’s potential action against those electors.
The contention that the electors met in secret is a lie on its face: The Republican Party of Wisconsin sent out a press release on December 14th, 2020 announcing that “Republican electors met today in accordance with statutory guidelines to preserve [the GOP’s] role in the electoral process with the final outcome still pending in the courts.”
Later that day, the Wisconsin Supreme Court ruled in a 4-3 decision to uphold President Biden’s win in the state, effectively ending former President Trump’s efforts to challenge the results through the justice system. This cleared the way for Biden’s electors to meet at the Wisconsin Capitol and cast their votes for him.
What would have happened if the Court had ruled for Trump? What if, hypothetically, the justices would have found that there was outcome-determinative fraud, and that Trump was really the winner of Wisconsin’s 10 electoral votes?
Federal law requires the Electoral College to meet on the first Monday after the second Wednesday of December in presidential election years. In 2020, that just happened to fall on December 14th, the same day of the Supreme Court’s ruling. If the Court had ruled for Trump, he would have needed to immediately assemble a group of electors to cast their ballots for him (since Biden’s electors obviously would not) that same day.
Rather than do that, the Republican Party of Wisconsin readied a slate of alternate electors ahead of time who met at the Capitol and were prepared to cast ballots for Trump if the Supreme Court ruled that he had won Wisconsin.
One of those electors, former Republican Party of Wisconsin Chairman Andrew Hitt, testified before Congress’ January 6thCommittee that the electors were assembled and met only in the event that they would be needed to cast electoral ballots for Trump in the event that Wisconsin’s recount—which ended just a few days before December 14th—changed the results or the Supreme Court ruled that fraudulent votes for Biden won him the state and that Trump was in fact the rightful winner.
Before doing so, Hitt testified that the electors consulted with longtime Wisconsin GOP attorney Joe Olson, who advised them that their actions were perfectly lawful. The Wisconsin Elections Commission agreed, ruling unanimously in March 2022 that the electors did not violate any statute, criminal or otherwise.
“Wisconsin law does not prohibit an alternative set of electors from meeting,” Wisconsin Assistant Attorny General Mike Murphy, a Democrat serving as outside counsel for the Elections Commission, wrote in a memo to commissioners. “Based upon the text of the relevant statutes, and in light of the facts, historical precedent, and related federal authorities, this memorandum concludes that [there is no] reasonable suspicion that [the Republican electors] violated Wisconsin election law.”
The most relevant precedent for an alternate slate of electors dates to the hotly contested 1960 presidential election, in which Republican Richard Nixon won the state of Hawaii over Democrat John F. Kennedy by just 141 votes. The Republican slate of electors was empowered to cast their ballots for Nixon (who had lost the election regardless of the outcome in Hawaii), but Kennedy voters sued to force a recount.
While the results of this recount were pending Hawaii Democrats nominated their own slate of electors and, on December 19th, 1960, both the Democrat and Republican slates cast their ballots. Nine days later, the recount revealed that Kennedy had actually won Hawaii by 115 votes, and Congress formally counted the Democrat votes a few days later.
If that recount would have confirmed Nixon’s victory, should Kennedy’s electors have faced criminal prosecution? No reasonable person would think so, as they were convened only in the event that they were needed. Federal law requires an Electoral College vote on the first Monday after the second Wednesday in December, and if a state’s election is not settled by then, it is entirely appropriate for electors for both candidates to cast ballots.
That is exactly what happened in Wisconsin 60 years later, but now the state’s governor is attempting to criminalize perfectly lawful behavior. Is it because he genuinely believes they committed crimes? That’s doubtful, given that his own assistant attorney general outlined in painstaking detail how they fully complied with state statutes.
Evers is just playing politics, trying to gin up anti-Trump fervor in a key swing state ahead of the election, and, of course, trying to add a few names to his email list. Now sign up if you want to help Tony battle the forces of evil!
