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!
CRS spelled this out on December 8, 2020 in a 13-page document titled “Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress.” Indeed, beneath the bold-faced heading below, this report includes an entire section about how to handle what Willis and other Democrat liars deceitfully call “fake electors”:
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. (READ MORE: Georgia Indictment: Dems’ Latest Bid to Jail Trump, Imprison the Constitution)
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.)
As CRS explains, these laws intended that Congress sometimes would select between a state’s two distinct sets of electors, especially when its disputed counts, recounts, and legal challenges failed to answer the question, “Who won?”
“Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law,” CRS observes. Furthermore, “it seems likely that this issue of the lawfulness of the determination and certification by a state could be raised and dealt with in the joint session.”
READ MORE from Deroy Murdock: Dem Ploys to Deny, Overturn GOP Presidential Wins Revealed in New Trump Ad
A joint session occurs on or about the January 6 after each presidential election. Senators and House members convene in the House chamber to count and certify the Electoral College votes from all 50 states.
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.
“I have used throughout this book the above tabulation of the Associated Press of December 17th, 1960,” White wrote. “For the record, however, it should be pointed out that the recount of the Hawaii vote was still in progress during the period of the AP tabulation,” White added.
With Hawaii’s results in flux, the next step was no surprise.
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.
Trump attempted in Georgia exactly what Kennedy accomplished in Hawaii in 1960 and early 1961: Pursue recounts and other challenges in a tight race in a particular state, send an alternate slate of electors to Washington, and then let a joint session of Congress declare a winner. (READ MORE: The Big Lie of ‘Fake Trump Electors’)
The rules that were good enough for John F. Kennedy in 1960 and 1961 were good enough for Donald J. Trump in 2020 and 2021.
Long before the Kennedy-Nixon dustup, the election of 1876 devolved into a veritable open-outcry auction among conflicting electoral slates from Florida, Louisiana, Oregon, and South Carolina. The details are too convoluted to revisit here. For further reading, however, a summary from the University of Virginia’s Miller Center is most informative, as is Gore Vidal’s highly entertaining historical novel, 1876.
Based on these precedents, Trump and his 18 co-defendants did nothing wrong and everything right. At 9:00 o’clock tomorrow morning, Donald J. Trump’s attorneys should march into Fulton County Judge Scott McAfee’s courtroom and introduce a motion to dismiss persecutor Fani Willis’ putrid case.
Deroy Murdock is a Manhattan-based Fox News contributor.