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.
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.
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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).
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.
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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.
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.
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