Michigan AG charges 16 people in fake electors scheme: 4 essential reads on how the Electoral College works

The Michigan attorney general on July 18, 2023, charged 16 people with felonies for participating in a 2020 fake electors scheme^[1] to interfere with the Electoral College and overturn their state’s presidential election results.

This is the first time a prosecutor in any jurisdiction – state or federal – has charged people in connection with a fake electors plot designed to deny voters’ will and award the 2020 presidential election to then President Donald Trump^[2]. But versions of the alleged crimes, reportedly set up by Trump’s presidential campaign, also occurred in six other battleground states. Investigations in some of those states are underway^[3].

According to Michigan Attorney General Dana Nessel, the Michigan 16, who range in age from 55 to 82, met secretly on December 14, 2020, in the basement of Michigan Republican Party headquarters. There, they signed their names to multiple fake certificates claiming to be Michigan’s duly elected presidential electors who could award the state’s electoral votes to the candidate they wanted – Trump – instead of Joe Biden, the candidate Michigan voters actually elected.

“After signing these fraudulent electoral documents, some of the false electors attempted to enter the state capitol and deliver their fabricated electoral votes to the Senate floor but were turned away,” Nessel said in a written statement. “The false electoral documents were then conveyed to the United States Senate and the National Archives, with the intent that Vice President Pence would overturn the results of the election using the false electoral slate.”

In this alleged plot, each of the 16 so-called fake electors has been charged with one count of conspiracy to commit forgery; two counts of forgery; one count of conspiracy to commit election law forgery; and two counts of election law forgery, among other charges.

So, what exactly is the Electoral College and how does it work?

The Conversation has covered the nuts and bolts of the Electoral College and the intricacies it involves. Here are four essential reads to help you understand the process.

1. All 50 states and Washington, D.C., get electors

The U.S. presidential election is not actually one massive election. Instead, as John A. Tures, a professor of political science at LaGrange College^[4], wrote, it’s a combination of 51 separate elections that occur in each state and the District of Columbia.

“The winner of the popular vote in each state gets a certain number of electoral votes, and the candidate who collects at least 270 wins the presidency,” he explained.

The number of electoral votes each state gets is partly determined by their total populations. In addition, each state gets two electors to correspond with the U.S. senators they have and one elector for each of their representatives in the U.S. House of Representatives.

“No state can have fewer than three electoral votes, no matter how few people live there. The same is true for the District of Columbia, which is also guaranteed at least three electoral votes,” Tures wrote.

Read more: The Electoral College system isn't 'one person, one vote'^[5]

2. The electors’ role is essential to U.S. presidential elections

The presidential election process in the U.S. is intricate and involves a lot of people – and time.

As Amy Dacey, who directs an academic research center on politics^[6] at American University, wrote, certifying presidential elections in the U.S. is a four-month process.

“The unusual and complicated presidential election certification process in the U.S. entwines all 50 states and the District of Columbia, the Senate, House of Representatives, the National Archives and the Office of the Federal Register. It also involves the Electoral College – a uniquely American institution^[7] that convenes in 51 separate locations once every four years to pick the president,” Dacey wrote.

This is how it works: Every four years, Americans vote on the first Tuesday in November to elect a president. The preceding October, the archivist of the United States sends a letter to each state’s governor outlining their Electoral College responsibilities.

After the elections and once all the votes in each of the 50 states and Washington, D.C., are in, the governors prepare their respective documents known as Certificates of Ascertainment, which list their electors for the candidates, and submit the documents to the U.S. archivist. Then, each state’s electors meet in their respective capitals on the first Monday after the second Wednesday in December to formally vote for president and vice president. During the meetings, the electors in each state and Washington, D.C., prepare six Certificates of Vote and send one each by registered mail to the president of the U.S. Senate, the archivist of the United States and the remaining four to state officials.

At that point, Electoral College electors’ duties are finished until the next presidential election.

Read more: Who formally declares the winner of the US presidential election?^[8]

3. Congress certifies votes from the Electoral College

The presidential election certification process itself concludes during a joint session of Congress in January, when members meet to tally the Electoral College votes. The proceeding is more than a formality - even if some roles within it are purely ceremonial.

Once the sealed Certificates of Vote from each of the 50 states and Washington, D.C., are brought to the joint session – in ceremonial mahogany boxes – the president of the Senate, typically the vice president of the U.S., opens the 51 envelopes individually and hands them to the tellers - or vote counters - who announce each state’s results aloud and record the votes so they can be tallied. Then the vice president calls for objections that may exist.

As Donald Brand, a professor of political science^[9] at the College of the Holy Cross, wrote, it is not legally or politically possible to subvert the Electoral College.

“The Electoral Count Act of 1887 requires Congress to convene and review – rather than simply rubber-stamp – Electoral College results^[10],” he wrote. “It puts the onus for resolving electoral disputes on the states. As long as they do so, certifying their election results no later than six days before the Electoral College meets to cast its votes, then states will enjoy ‘safe harbor’ protection. That means their results will be considered ‘conclusive’ when Congress convenes to certify the vote …”

Congress is required by law to defer to the states’ and Washington, D.C.’s electoral votes as long as they were in by the established deadline.

Still, the Electoral Count Act allows for challenges of the results through a process that involves both houses of Congress initially debating separately. The Electoral Count Reform Act, described below, raises the previous objection threshold.

“To overturn an election result, Congress would have to disqualify enough electoral votes to deprive one candidate of the 270 votes needed to win. The House would then choose the next president based on an unusual voting system specified in Article 2 of the Constitution,” Brand wrote.

Read more: Why Trump's Senate supporters can't overturn Electoral College results they don't like – here's how the law actually works^[11]

4. Recent legislation should prevent future attempts to overturn the presidential election

Two years after people attacked the U.S. Capitol and alleged fake electors plotted to overturn results of a presidential election, Congress passed legislation that clarified ambiguous aspects of the Electoral College process so no one can steal future elections. The legislation is known as the Electoral Count Reform Act.

Derek T. Muller, an election law scholar^[12] at the University of Iowa who testified on a bipartisan invitation during a Senate hearing about the importance of the legislation, wrote about several of its significant reforms, including that there’s no longer any confusion about when or if a state has failed to choose its presidential electors.

Before the Electoral Count Reform Act, states could legally choose their presidential electors after Election Day if they “failed to make a choice” on that day. But that created the unanswered question, when has a state “failed to make a choice” that some people attempted to exploit during the 2020 election cycle, with claims that questions about voter fraud or absentee ballots constituted such a failure. That would have opened the door for certain states to choose electors on a later date.

“That raised the prospect that states might send two sets of electors to Congress, a slate for the candidate who carried the popular vote and another slate, chosen later by the legislature,” Muller wrote. “And that would invite Congress to undermine the popular election results by counting the second set of electoral votes.”

That confusion is a thing of the past.

“There will be one day of choosing electors, with no possibility of a later choice. And state legislatures cannot show up after the election and attempt to change the rules – the bill mandates that state rules for how the election is run must be on the books before Election Day,” Muller wrote.

The Electoral Count Reform Act also creates a firm date for states to certify their election results. This particular reform was necessary because, in the past, disputes about which votes should or should not be counted lasted for weeks. But having a firm date ensures there will be a quick end to any litigation that may arise.

Equally important, the act also limits people’s ability to create fake slates of electors – as allegedly was done in Michigan – because of a speedy judicial review process and the definite obligations for state election officials to certify only the result that matches the outcome of the election held on Election Day.

Another notable reform is the requirement for one fifth of members of Congress to object to the counting of electoral votes. Prior to the Electoral Count Reform Act, it took only one member from each house of Congress to object, which opened debate on the issue.

“Raising the threshold makes it harder to slow down counting and increases public confidence by refusing to give attention to baseless objections,” Muller wrote.

The act also clarifies that the role of the vice president, as president of the Senate, in counting the electoral votes is purely ceremonial. As has always been the case, the vice president alone has no power to determine whether electoral votes should be counted.

Leading up to the Jan. 6, 2021, certification of the 2020 presidential election, Trump repeatedly pressured former Vice President Mike Pence to refuse to count electoral votes during the joint session of Congress.

Read more: Congress passes legislation that will close off presidential election mischief and help avoid another Jan. 6^[13]

Editor’s note: This is a roundup of articles from The Conversation’s archives.

References

1. ^{^} charged 16 people with felonies for participating in a 2020 fake electors scheme (www.michigan.gov)
2. ^{^} fake electors plot designed to deny voters’ will and award the 2020 presidential election to then President Donald Trump (www.cnn.com)
3. ^{^} Investigations in some of those states are underway (apnews.com)
4. ^{^} John A. Tures, a professor of political science at LaGrange College (scholar.google.com)
5. ^{^} The Electoral College system isn't 'one person, one vote' (theconversation.com)
6. ^{^} an academic research center on politics (www.american.edu)
7. ^{^} It also involves the Electoral College – a uniquely American institution (theconversation.com)
8. ^{^} Who formally declares the winner of the US presidential election? (theconversation.com)
9. ^{^} Donald Brand, a professor of political science (www.holycross.edu)
10. ^{^} rather than simply rubber-stamp – Electoral College results (theconversation.com)
11. ^{^} Why Trump's Senate supporters can't overturn Electoral College results they don't like – here's how the law actually works (theconversation.com)
12. ^{^} Derek T. Muller, an election law scholar (scholar.google.com)
13. ^{^} Congress passes legislation that will close off presidential election mischief and help avoid another Jan. 6 (theconversation.com)