Civics: The Constitution Protects ‘Fake Electors’

Larry Lessig:

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.