Hyla
on September 16, 2023
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Fulton County District Attorney Fani Willis and her leftist comrades moan about “Donald Trump’s fake-electors scheme” as if it were a cutting-edge conspiracy concocted at his Mar-a-Lago compound in the wee small hours of the morning. In fact, “fake electors” are neither new nor nefarious. And they are not fake, either.
Believe it or not, a Congressional Research Service paper discusses how to proceed when a state sends to Washington two separate slates of presidential electors — as has happened in the past!
Receipt of Two Certificates From the Same State
As the CRS study declares:
“Influenced by its historical experience prior to 1887, Congress was particularly concerned in the statute of 1887 with the case of two lists of electors and votes being presented to Congress from the same state.”
The relevant law is the Electoral Count Act of 1887, particularly 3 U.S. Code § 15.
The other governing authority is the Supreme Law of the Land: Article I, Section 1 of the United States Constitution and the 12th Amendment thereto.
CRS adds, “Three different contingencies appear to be provided for in the statute for two lists being presented.” To oversimplify:
First, between a state’s two competing slates of electors, Congress must count the one most consistent with that state’s laws on post-election challenges.
Second, faced with two conflicting lists of electors, each endorsed by a separate state authority (perhaps one backed by a Republican governor and the other by a Democrat state legislature), then the U.S. Senate and House must concur on one group of electors. 
Third, if contending rosters of electors both lack the backing of any state authority, then the Senate and House must agree to count one set of votes, or the other, or neither. This highly ambiguous provision was in effect on January 6, 2017. (Last year, to limit such high-stakes confusion, Congress updated the Electoral Count Act via the Electoral Count Reform Act of 2022.)
In 1961, during a recount dispute after the 1960 election, Hawaii sent to Washington two slates of electors. One supported Democrat John F. Kennedy and another Republican Richard Milhous Nixon. GOP Governor William Quinn approved Nixon’s slate, based on the Aloha State’s popular vote on that December 19.
No less an authority than journalist Theodore H. White thought Nixon prevailed in Hawaii. The Making of the President 1960, White’s landmark account of the Kennedy-Nixon showdown, lists the tally as 92,403 for Nixon (50.01%) and 92,342 for Kennedy (49.98%), a 61-vote GOP edge.
As CRS notes: “Both slates of electors had met on the prescribed day in December, cast their votes for President and Vice President, and transmitted them according to the federal statute.”
Based on these precedents, Trump and his 18 co-defendants did nothing wrong and everything right.
Congress met in joint session on January 6, 1961 and weighed the results of a recount that emerged on December 28: Kennedy won 92,410 votes (50.03%) versus Nixon’s 92,295 (49.97%) — a final margin of 115 ballots! Equipped with these new data, Congress counted Kennedy’s slate of three electors on January 6, 1961.
Wow!
So, rather than a “fake-elector conspiracy” that “Donald Trump” and the Georgia 18 cooked up in Palm Beach, this dueling-slate scenario already happened. Democrats and Republicans sent two distinct lists of electors from one state. Congress consulted multiple laws and procedures to adjudicate this disagreement. And then it chose one group of electors over the other.
Amazingly, no one was indicted.
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