Why Nevada needs to outlaw fake electors
Secluded in an underground location at the Capitol for his protection on January 6, MIke Pence looks at a Trump tweet. (CSPAN screen grab).
Here’s the thing about sending a fake electoral certificate to Congress, according to Democratic state Sen. Skip Daly: “We don’t have any measure that actually prohibits that, per se.”
Daly was speaking at a legislative committee hearing this week on Senate Bill 133, which would make being a fake elector a crime in Nevada, punishable by imprisonment. Anyone convicted of being a fake elector under the statute would also be prohibited from holding a public office, or a job with state or local government. Daly told the committee there are further amendments in the works that may add some fines to the punishment.
Nevada’s Republican fake electors, including the then and still and maybe for life chairman of the state party, Michael McDonald, met in December 2020 and signed a certificate in which they claimed to be “duly elected and qualified electors” – an outrageous lie – and which purported to grant Nevada’s 2020 electoral college votes to the loser, aka Donald Trump. When they did that, they were acting contrary to Nevada state statute.
Testimony from two of those electors – McDonald, and then-party vice chair, now state party national committeeman James DeGraffenreid – given under subpoena to the U.S. House committee investigating the January 6 insurrection would later show that they knew their actions were lawless. They had been told so by none other than members of Trump’s legal and campaign team who were choreographing the national plot to steal the election for Trump.
Nevada’s law on presidential electors requires the secretary of state to preside over the signing of the certificate officially informing Congress who won the state. The law also requires the electors to bestow their electoral votes on the winner of the popular vote. Nevada’s fake electors by virtue of being fakes, could not possibly meet the first requirement, and attempted to overthrow the second.
But there’s nothing in Nevada’s statutes on presidential electors that says submitting a phony electoral certificate is a crime, let alone a punishable one. It just says if the law’s requirements aren’t met, the electoral certification isn’t valid.
So if the state were to charge McDonald, DeGraffenried, and fellow phonies Duward James Hindle III, Jesse Law, Shawn Meehan and Eileen Rice, what might the charge be?
Forgergy, maybe, posits the Brookings Institution in a December paper that looks at “potentially applicable state laws that may be implicated by the electors’ conduct” in Nevada and the other six states sporting fake electors for Trump.
But the forgery statute Brookings cites consists of a single sentence of (according to the Google docs word count tool) 406 words, nearly all of which are about money, and is included in the chapter of Nevada Revised Statutes titled “Crimes Against Property.”
Nevada’s “false impersonation” or “public officer making false certificate” statutes – others identified as potentially applicable by the Brookings analysis – also have specific focuses rendering them perhaps even more tangential to the offense of sending Congress a bogus certificate claiming the loser was the winner of the state’s presidential election.
Attempting to prosecute McDonald & Friends under any of those statutes would be messy at best.
Attorney General Aaron Ford (whose office did not respond to questions asked for this column) has been agonizingly coy about acknowledging whether his office is even investigating the fake electors. Perhaps it’s because, as Daly put it, “We don’t have any measure that actually prohibits that, per se.”
At the legislative hearing on the bill this week, Janine Hansen, chair of the Independent American Party, argued the bill is redundant, because a federal law designed to safeguard the electoral college certification process from fake electors was enacted last year.
Hopefully Hansen is right, and a law criminalizing fake electors would never be used.
But when Congress certifies the election results in 2024, the House will be controlled by Republicans, and many of the most influential Republicans in that chamber have repeatedly shown no respect for reality, let alone laws.
If anything, the right, including the aforementioned fire-eaters in the GOP House, are becoming more wound up about the 2020 election results. Election denialism is sure to be emboldened, and the right’s outrage over 2020 intensified, by Speaker Kevin McCarthy’s release of a collective thousands of hours of congressional January 6 surveillance video to Tucker Carlson – and only Tucker Carlson.
Although Carlson knows and privately admitted the election was not stolen, he also knows that his audience – his market – wants to believe it was. In his capacity as the Republican Party’s official unofficial communications and policy strategist, the narrative he’ll craft through deceptive editing of the video footage will make the base more, not less, hungry for a lawless attempt to seize the presidency. Federal legislation notwithstanding, an echo scheme hatched by Trump or Ron DeSantis could rely yet again on fake electors.
In a statement blasting McCarthy’s decision, Senate Majority Leader Chuck Schumer worried that the release would reveal “highly-guarded plans for continuity of government.”
McDonald, DeGraffenried and Nevada’s other four fake electors have already demonstrated their disregard for state law as well as the will of the state’s voters. A new state law, even one with stiff penalties, might not be enough to deter them and/or other Republicans from a repeat performance.
Then again, maybe it would. And even if it didn’t, Nevada would have a clear statute by which to make sure that if anyone ever again tries to nullify the choice of Nevada voters by sending Congress a fake presidential electoral certificate, they’ll be held accountable.
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