Efforts to prosecute them constitute election interference.
By Lawrence Lessig for the Wall Street Journal
Arizona has joined Georgia, Michigan and Wisconsin in seeking to prosecute Donald Trump’s 2020 electors. Mr. Trump and his party’s lawyers encouraged them to meet and vote on the date set by Congress, Dec. 15. Because Joe Biden carried those states, Democrats and journalists call these Trump electors “fake.” But the effort to prosecute them is unconstitutional, and the campaign to vilify them is stupid. A twist on a plotline from the HBO series “Succession” illustrates why.
In season 4, episode 8, a fire at a Milwaukee “vote count center” destroys more than 100,000 ballots, throwing Wisconsin—and the election—to the Republican candidate. Imagine a more complicated story: After the fire, the governor invokes federal law to order voting in Milwaukee be reopened. A state court holds that action unconstitutional. Democrats appeal.
While the litigation unfolds, the clock ticks. Imagine that the question isn’t resolved by electors day (designated by statute as the Tuesday after the second Wednesday in December). Which slate of electors should meet and vote?
Both, under a precedent set in Hawaii in 1960. Richard Nixon had been declared the winner of the Aloha State. A recount eventually went for John F. Kennedy—but not until after electors day. Both Nixon’s and Kennedy’s electors met to cast their ballots. On Jan. 6, 1961, Vice President Nixon, overseeing the count in Congress, counted Kennedy’s votes, not his.
Hawaii’s practice makes sense whenever there’s a question about which slate of electors was actually chosen on Election Day. If both sets of electors vote, the National Archives will have some extra paper. But if one set doesn’t vote, then litigation supporting their candidate is moot. Electoral votes must be cast on electors day; if they aren’t, they’re lost.
Presidential electors perform a federal function. A state’s interference with that function through prosecution is unconstitutional. More practically, such prosecutions create incentives for the apparent winning side to slow the resolution of any challenge. If the delay extends beyond electors day, and if fear of becoming a “fake-elector felon” drives the other side’s electors not to vote, then the presumptive result will become the only result — even if it doesn’t accord with the will of the voters, properly accounted.
The danger on the other side is that the losing side will file baseless challenges, as Mr. Trump’s lawyers did in 2020. But those lawyers have faced severe penalties. It’s wildly unrealistic to require electors—most of whom aren’t lawyers—to evaluate their candidate’s legal claims before casting their ballots. That burden belongs on the lawyers.
We know that elections are going to be close. There is no good reason to force a resolution of election contests weeks before Jan. 6. Hawaii gave us a way to allow the orderly resolution of election claims and ensure that the will of the people will ultimately count. We should follow that example from a less partisan time.
