Former President Donald Trump faces multiple criminal charges on the federal level for his alleged plot to submit alternate slates of electors in Georgia and elsewhere. Prosecutors claim these were fake electors, but Trump’s legal team notes that the practice of having alternate electors dates back to the 19th century.
“The core conduct alleged in the indictment relating to the presentation of alternate electors has a historical basis that dates back to 1800 and spans at least seven other elections. There are no other prosecutions in American history relating to these types of activities,” the motion filed by Trump’s attorneys says. “The allegations in the indictment involve constitutionally authorized activities by President Trump as Commander In Chief, as well as speech and expressive conduct protected by the First Amendment.”
Donald Trump Wants Hearing
Trump’s attorneys want a hearing to air their case. They contend the evidence against their client is pretextual due to reports that President Joe Biden wanted Trump prosecuted, as well as on historical precedent.
They claim that Trump is being singled out and call for the charges to be dismissed based on “selective and vindictive” prosecution. Considering the judge in the case, the motion is highly unlikely to be accepted. He claims that the alternate electors who signed off on a Trump victory engaged in symbolic free speech to show disapproval of Biden and how the election was run.
“Mike Pence, as Senate president, would not even let these pro-Trump submissions be opened in the joint session of Congress because, without any claim of any backing from any part of their state’s government, they could not be acknowledged as even asserting to be official electoral votes entitled to be considered by Congress,” Ohio State Law Professor Edward B. Foley wrote in a post on Just Security.
Historical Precedents
Past examples of alternate electors include the then newly minted State of Hawaii submitted two slates of electors to Congress in 1960. One slate was for then Vice President Richard Nixon. The other slate was for Sen. John F. Kennedy.
Democrats looked to the 1960 election as a precedent for overcoming the disputed Florida election in 2000. In 1960, the original vote tally showed that Nixon beat Kennedy by 141 votes. Thirty Democratic voters sued to challenge the vote, demanding a recount in 34 of the state’s 240 precincts. Hawaii Republicans disputed the challenge, noting that timing was too short. Dec. 13, 1960 was the deadline for certifying electors, six days before Dec. 19, 1960 when the electors were set to meet. The recount started on Dec. 13, 1960, but only one-third of the votes had been recounted by the time the electors met.
Democratic electors also met to cast their vote for Kennedy. Kennedy was leading by 83 votes when the electors met on Dec. 19. The recount concluded on Dec. 28. The court ruled on December 30 that Kennedy had won; however, that was after the Republican electors had met and cast their three votes for Nixon. The Democratic electors met and cast their vote for Kennedy.
Congress was forced to decide among three certificates.
Ironically, Nixon presided over the joint session of Congress that considered the third certificate from Hawaii’s acting governor opted to consider the electors named in
Vice President Nixon, sitting as the presiding officer of the joint convention of the two Houses, decided that the electors named in the certificate of the Governor dated Jan. 4, 1961, be considered Hawaii’s lawful electors. Hawaii’s two U.S. Senators and sole congressman supported the decision.
Another example was the disputed election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden. The Democrat and Republican disputed the electoral votes from South Carolina, Florida, and Vermont.
Foley noted the difference between Trump and the precedents was that all evidence shows that Trump lost the 2020 election. He lost in court every single time.
“The Hayes-Tilden controversy was genuine, and the particular details concerning South Carolina and Vermont must be seen in that context. Nothing about Trump’s challenge to Biden’s electoral victory was genuine, and that basic point should make all the difference,” Foley said.
John Rossomando is a defense and counterterrorism analyst and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.
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