In the days and weeks after the 2020 election, partisans across the country used lies and deceit to try to defraud the American people and steal the White House.
Although Joe Biden was the clear and unequivocal winner, racking up big margins in the popular vote and electoral college, 84 fake electors signed statements certifying that Donald Trump had carried their seven battleground states.
He did not.
The electoral votes at issue constituted nearly a third of the number needed to win the presidency and would have been more than enough to reverse Biden’s victory, granting Trump a second term against the wishes of most voters.
To some, the attempted election theft is old (and eagerly buried) news.
The events that culminated in the violent assault on the Capitol and attempt to block Biden from taking office occurred half a decade ago, the shovel wielders might say, making them as relevant as those faded social-distancing stickers you still see in some stores. Besides, Trump was given a second turn in the White House by a plurality of voters in 2024.
But it’s only old news if you believe that justice and integrity carry an expiration date, wrongdoing is fine with the passage of enough time and the foundational values of our country and its democracy — starting with fair and honest elections — matter only to the extent they help your political side prevail.
It bears repeating: “What we’re talking about here is an attempt to overturn the outcome of a presidential election,” said Sean Morales-Doyle, who heads the Voting Rights and Elections Program at the Brennan Center for Justice, a law and policy think tank at New York University. “If people can engage in that kind of conduct without consequence or accountability, then we have to worry about it happening again.”
Which is why punishment and deterrence are so important.
Last week, the Nevada Supreme Court unanimously reinstated the criminal case against six Republicans who signed certificates falsely claiming Trump had won the state’s electoral votes. Those charged include Nevada’s GOP chairman, Michael McDonald, and the state’s representative on the Republican National Committee, Jim DeGraffenreid.
The ruling focused on a procedural matter: whether the charges should have been brought in Douglas County, where the fake certificates were signed in the state capital — Carson City — or in Clark County, where they were submitted at a courthouse in Las Vegas. A lower court ruled the charges should have been brought in Douglas County and dismissed the case. The high court reversed the decision, allowing the prosecution on forgery charges to proceed.
As well it should. Let a jury decide.
Of course, the Nevada Six and other phony electors are but small fry. The ringleader and attempted-larcenist-in-chief — Donald “Find Me 11,780 Votes” Trump — escaped liability by winning the 2024 election.
This month, he pardoned scores of fake electors and others involved in the attempted election heist — including his bumbling ex-attorney, Rudolph W. Giuliani — for any potential federal crimes. The move was purely symbolic; Trump’s pardoning power does not extend to cases brought in state courts.
But it was further evidence of his abundant contempt for the rule of law. (Just hours after taking office, Trump pardoned nearly 1,600 defendants — including some who brutalized cops with pepper spray and wooden and metal poles — who were involved in the Jan. 6, 2021, attack on the Capitol.)
Efforts around the country to prosecute even those low-level schemers, cheaters and 2020 election miscreants have produced mixed results.
In Michigan, a judge threw out the criminal case against 15 phony electors, ruling the government failed to present sufficient evidence that they intended to commit fraud.
In New Mexico and Pennsylvania, fake electors avoided prosecution because their certification came with a caveat. It said the documentation was submitted in the event they were recognized as legitimate electors. The issue was moot once Trump lost his fight to overturn the election, though some in Trump’s orbit hoped the phony certifications would help pressure Pence.
Derek Muller, a Notre Dame law professor, looks askance at many of the cases that prosecutors have brought, suggesting the ballot box — rather than a courtroom — may be the better venue to litigate the matter.
“There’s a fine line between what’s distasteful conduct and what’s criminal conduct,” Muller said. “I don’t have easy answers about which kinds of things should or shouldn’t be prosecuted in a particular moment, except to say if it’s something novel” — like these 2020 cases — “having a pretty iron-clad legal theory is pretty essential if you’re going to be prosecuting people for engaging in this sort of political protest activity.”
Other cases grind on.
Three fake electors are scheduled for a preliminary hearing on forgery charges next month in Wisconsin. Fourteen defendants — including Giuliani and former White House Chief of Staff Mark Meadows — face charges in Georgia. In Arizona, the state attorney general must decide this week whether to move forward with a case against 11 people after a judge tossed out an indictment because of how the case was presented to grand jurors.
Justice in the case of the 2020 election has been far from sure and swift. But that’s no reason to relent.
The penalty for hijacking a plane is a minimum of 20 years in federal prison. That seems excessive for the fake electors.
But dozens of bad actors tried to hijack an election. They shouldn’t be let off scot-free.
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