Yet more indictments: Prosecution of 2020 alternate electors in six of seven states likely

In Special Counsel Jack Smith’s indictment of former President Donald Trump regarding the 2020 presidential election and Jan. 6, the issue of alternate electors from seven states has become another focal point, as officials – all Democrats – from six of those states determine whether to prosecute.

In the federal indictment of Trump last week, Smith charged the former president with four counts, including conspiracy to defraud, conspiracy to obstruct an official proceeding, obstruction of, and attempt to obstruct an official proceeding, and conspiracy against rights. The indictment also acknowledges six unnamed co-conspirators with whom Trump allegedly did "conspire, confederate, and agree" to defraud the country.

Under the first count, Smith elaborated on the alternate electors in the seven states, calling them “fake” and “fraudulent.”

The alternate electors were Republican electors chosen by their respective state parties to cast electoral votes for the Republican candidate in the general election if that  candidate won the state. These electors allegedly signed documents saying that they were in fact Electoral College voters, with Pennsylvania adding a caveat that their votes would only be valid if they were recognized as “duly elected and qualified electors.”

Each state handled the alternate electors differently, with some pursuing prosecution, referring them to federal prosecutors, or not taking any prosecutorial steps.

Arizona: The state’s 11 alternate electors are being investigated by Attorney General Kris Mayes, while federal subpoenas were sent to then-state senators last year regarding communications with the alternate electors.

Georgia: The state’s 16 alternate electors are part of a probe by Fulton County District Attorney Fani Willis, who is investigating Trump for challenging the 2020 presidential election. In May, at least eight of the electors were granted immunity in the probe in return for their cooperation. Willis said that the investigation has effectively concluded and a decision is expected to be made by a grand jury as to whether Trump or others will be charged by the end of the month.

Michigan: The state’s 16 alternate electors were charged by Michigan Attorney General Dana Nessel last month for allegedly submitting false certificates claiming they were the legitimate electors. Each faces eight criminal charges, including forgery and conspiracy to commit election forgery. Early last year, Nessel had initially referred charges to federal prosecutors. After federal officials didn’t pursue the charges for a year, Nessel started the state case. Also, in January, three of the Democratic electors who cast their votes for Joe Biden in the 2020 presidential election filed a lawsuit against the 16 alternate electors in January, seeking $25,000 in damages. Stan Grot, Michigan’s Shelby Township Clerk who was a 2020 alternate elector, was notified last month by the state Bureau of Elections that he won’t be allowed to administer elections while facing charges by the state attorney general. He has previously declined to discuss the charges but said he would follow the letter from the Michigan Bureau of Elections.

Nevada: The state’s six alternate electors have not been investigated by Nevada Attorney General Aaron Ford, who declined to start a probe. However, alternate elector and state GOP chair Michael McDonald’s phone was seized and searched last year by the FBI. McDonald and another alternate elector, Nevada Republican Party official Jim DeGraffenreid, also testified before the House Jan. 6 committee and in Smith’s federal investigation. Both McDonald and DeGraffenreid have received limited immunity in exchange for their testimony and have declined to comment.

New Mexico: The state’s five alternate electors were first investigated by Democratic state Attorney General Hector Balderas in January 2022, but were then referred to federal prosecutors. However, there has been no announcement of any state or federal investigation since the referral. Two of the electors testified last year before the House Jan. 6 committee.

Pennsylvania: The state’s 20 alternate electors are not facing a state investigation. Last year, then-attorney general Josh Shapiro said that because the electors added a caveat that their votes would only be valid if they were recognized as “duly elected and qualified electors,” they had likely not acted criminally.

Wisconsin: The state’s 10 alternate electors are not currently under investigation. Governor Tony Evers said last week that he wants the alternate electors prosecuted. State Attorney General Josh Kaul has not said whether there is currently an investigation into the alternate electors, but believes “that those who committed crimes with the goal of overturning the results of the election should be held accountable.”

In support of the Georgia alternate electors, the state Republican Party announced last week that it has launched a website defending them against Willis’ investigation. The website explains what the electors did, the precedent for their actions, and the lawsuit that was pending at the time.

Georgia Republican Party Chairman Josh McKoon told “Just the News, No Noise” TV show last Tuesday that, in 2020, Trump and the former state GOP chairman “filed a lawsuit on December 4th, contesting the election, as they are allowed to do under Georgia law. They were guaranteed a legal hearing within 20 days of that filing. Ten days later, the deadline arrived to submit electoral votes.

“If those electoral votes had not been submitted, the lawsuit would have been dismissed,” McKoon continued. “The only way to preserve President Trump's remedy was for the electors to meet and cast these votes. And it has happened before, it did happen in Hawaii, it was exactly the same set of circumstances, the exact same language being used.”

McKoon referenced the 1960 presidential election in Hawaii, which was initially certified for Richard Nixon. After a lawsuit was filed by John F. Kennedy supporters who alleged irregularities, the judge sided with them and the electoral votes for the state were cast for Kennedy.