The Left’s 2020 ‘Fake Electors’ Narrative Is Fake News – The Federalist

Headlines recently proclaimed that eight of Trumps fake electors accepted immunity deals. Of course, in reporting the news, the corporate outlets all missed the real story that the electors testimony failed to incriminate anyone, including Trump, and that the county prosecutors engaged in massive misconduct. Equally appalling, however, was the corrupt medias continued peddling of the fake electors narrative.

There were no fake electors. There were contingent Republican electors named consistent with legal precedent to preserve the still ongoing legal challenges to the validity of Georgias certified vote.

Nor was appointing an alternative slate of electors some cockamamie plan devised by Trump lawyers. On the contrary, Trumps election lawyers and the contingent electors followed the precise approach Democrats successfully used when the date Congress established for certifying an election came before the legal challenges John F. Kennedy had brought in Hawaii were decided. And that approach allowed Kennedy to be certified the winner of Hawaiis three electoral votes on Jan. 6, 1961, even though the Aloha State had originally certified Richard Nixon the victor.

The Hawaii scenario in 1960 mirrors in every material respect the facts on the ground in Georgia on Dec. 14, 2020 the date both the Democrat and Republican presidential electors met and cast their 16 electoral votes for Joe Biden and Donald Trump respectively.

Election day in 1960 fell on Nov. 8 and pitted Kennedy, a Democrat, against Republican Richard Nixon. The outcome remained unknown for some time, with a total of 93 electoral votes from eight different states undecided in the days following the election. Hawaii was one of those states.

By Dec. 9 of that year, Kennedy had accumulated enough electoral votes to win the White House, but Hawaiis winner was still in question. While the presidency did not depend on Hawaiis three electoral votes, Democrats there had challenged the initial returns that gave Nixon a 141-vote edge, or 0.08 percent margin of victory.

Based on the original count in favor of Nixon, the acting governor of Hawaii, Republican James Kealoha, certified the Republican electors on Nov. 28, 1960. On Dec. 13, over the objections of the state attorney general, state circuit court Judge Ronald Jamieson ordered a recount. Then, on Dec. 19, both the Nixon and Kennedy electors met, cast their votes for President and Vice President, and certified their own meeting and votes.

In casting their electoral ballots for Kennedy, the three Hawaiian Democrats certified they were the duly and legally qualified and appointed electors for president and vice president for the state of Hawaii and that they had been certified (as such) by the Executive. The Hawaii electors further attested: We hereby certify that the lists of all the votes of the state of Hawaii given for President, and of all the votes given for Vice President, are contained herein.

Two of the three Democrat electors were retired federal judges, William Heen and Delbert Metzger, and Heen personally mailed the Democrat electoral votes to Congress on Dec. 20. In fact, the envelope containing the certificates, further attested: We hereby certify that the lists of all the votes of the state of Hawaii given for president are contained herein.

Ten days later, on Dec. 30, 1960, Judge Jamieson held that Kennedy had won the election. In so holding, Jamieson stressed the importance of the Democrat electors having met on Dec. 19, as prescribed by the Electoral Count Act, to cast their ballots in favor of Kennedy. That step allowed the Hawaii governor to then certify Kennedy as the winner of Hawaiis three electoral votes and, in turn, Congress to count Hawaiis electoral votes in favor of Kennedy.

The Georgia situation in 2020 mirrored the events of 60 years ago in Hawaii.

Election day in 2020 fell on Nov. 3, although by then many ballots had already been cast, given the adoption of mass mail-in and early voting. Trump held a lead in Georgia until the morning of Friday, Nov. 6, when Biden overtook the incumbent. With the margin remaining tight, on Nov. 11, Georgia Secretary of State Brad Raffenspergerannounced a statewide audit.

Following the audit, Biden remained in the lead by approximately 12,000 votes, leading Raffensperger to certify the election results on Friday, Nov. 20, 2020. Republic Gov. Brian Kemp signed the certification the same day. Then on Nov. 21, Trump requested a recount, as allowed under Georgia law given the closeness of the count.

On Dec. 4, 2020, then-President Trump and Republican elector David Shafer filed suit in a Fulton County state court against Raffensperger, arguing tens of thousands of votes counted in the presidential election had been cast in violation of Georgia law. While Trumps lawsuit was still pending, on Dec. 7, 2020, based on the recount, Raffensperger recertified Biden as the winner of Georgias 16 electoral votes by a margin of 11,779.

Trump and Shafers Fulton County lawsuit contesting the election results remained pending on Dec. 14, 2020, the date the presidential electors were required by federal law to meet. Thus, while the Democrat electors met and cast their ballots for Joe Biden, the Republican electors met separately and cast their 16 votes for Trump.

At that time, Shafer made clear the Trump electors had met and cast their votes to ensure Trumps legal battle in court remained viable. Nonetheless, following Bidens election, Fulton County Prosecutor Fani Willis targeted the Republican electors as part of her criminal special purpose grand jury investigation.

While the grand jury has since issued a report and been disbanded, Willis agreed to grant immunity to eight of the electors, likely to push them to implicate the other electors. However, their lawyer confirmed in a court filing that none of the electors implicated anyone in criminal activity.

Since then, Shafers attorneys, Holly Pierson and Craig Gillen, wrote Willis a detailed letter reviewing the Hawaii precedent. The attorneys noted they had made three prior written requests to meet to discuss the factual and legal issues relevant to Shafers role as a contingent Trump elector but had not yet received any response to those requests.

The 11-page, single-spaced letter then proceeded to detail both the Hawaii precedent for Shafers actions following the 2020 election and the legal advice the Republican elector received that he and the other contingent presidential electors should meet at the state capitol building on December 14, 2020, and perform the duties of a presidential elector to preserve potential remedies in the event Trump et al. v. Raffensperger, et al. was successful.

In addition to detailing the Hawaii precedent from 1960, Shafers lawyers highlighted the fact that in contesting the 2000 election, lawyers for then-Democrat presidential candidate Al Gore cited that very precedent to support his position that two elector slates could be appointed. In fact, Democrat Rep. Patsy Mink of Hawaii suggested the 2000 Florida electoral dispute be resolved based on that Hawaii precedent too. And three Supreme Court justices in Bush v. Gore cited the Hawaii precedent as a basis for allowing the Florida recount to proceed.

As the letter and Hawaii precedent make clear, Shafer and the other Trump electors not only did nothing wrong, but they acted prudentially to ensure that if the state court lawsuit resolved in the presidents favor, Georgias electoral votes would be properly counted on Jan. 6, 2020.

Here we see one of the only differences between Trumps legal challenge and Kennedys: The Hawaii state court promptly resolved the merits of Kennedys legal challenge, while in violation of the Georgia Election Code that requires lawsuits contesting elections to be heard within 20 days, the Fulton County court delayed assigning a judge to hear Trumps election dispute and then delayed the first scheduled hearing until Jan. 8, 2021 two days after Congress certified Biden the winner of the 2020 election.

Now you know the rest of the story. There were no fake electors. The question now is whether Willis will charge Shafer and others with fake crimes.

Margot Cleveland is The Federalist's senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prizethe law schools highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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The Left's 2020 'Fake Electors' Narrative Is Fake News - The Federalist