The “Fake Electoral” plans of 2020 shall be harder to implement in 2024 – but not unattainable

Electors will gather throughout the United States in December 2024, just weeks after the election, and officially solid their votes for president and vp. They will send their votes to Congress, which is able to count them and determine who received probably the most votes. Normally, the casting of electoral votes is little greater than a ceremonial process.

But the last time this process took place in 2020, it was anything but typical.

In seven statesIn addition to the official electors, others who called themselves electors met and pretended to vote for Republican Donald Trump on December 14. They did so regardless that Democrat Joe Biden had won their states within the November election. They sent their votes to Congress identical to the official electors. When the electoral votes were counted on January 6, 2021, some in Congress argued that these alleged alternative votes meant that the end result of the election remained uncertain.

Many of those Alleged voters now face criminal prosecution. Some might be convicted. And the likelihood that the alleged electors will try again in 2024 is lower – but still possible.

“Quota” or simply fake?

These other electors called themselves “contingent” electors and argued that they might be the “true” electors if the lawsuits filed by the Trump campaign to challenge the outcomes ultimately turned out in Trump’s favor. Some of those other electors drew an analogy to Hawaii's controversial 1960 presidential election. Although Republicans had a majority in Hawaii, a recount was underway when the electors met, and each Republican and Democratic electors sent their votes to Congress. The recount ultimately went in favor of the Democrats, and Congress counted the votes solid by the Democrats.

In 2020, Republican electors in two states, New Mexico and Pennsylvania, sent certificates that explicitly included a clause that they’d only solid their votes if those electors were declared the true electors in a court case. This clause appears saved her from prosecution.

Opponents and critics have called them “fake” electors because they’d no governmental authority to act while presenting themselves as something real. These opponents indicate that an actual recount was underway within the 1960 Hawaii election, and There were no serious legal disputes in every state in 2020 when the electors met. Almost all cases had been dismissed by December 14, and a few pending appeals had no realistic prospect of success. The sole purpose of those electoral college actions, opponents argue, was to sow distrust and confusion.

“No authority”

Regardless of the adjective, these potential electors had no authority. In Arizona, Georgia, Michigan and Nevada, most of those electors face criminal prosecution on charges reminiscent of Forgery And FraudThe charges could end in prison sentences of as much as 20 years.

A significant challenge in these prosecutions shall be proving that voters had the requisite intent to commit against the law.

On the one hand, it was quite obvious that they weren’t the legitimate voters on the time they solid their votes, and so they filled out the paperwork to supposedly exercise legitimate power.

On the opposite hand, in the event that they can argue that they relied on the recommendation of Trump’s lawyers or other campaign staff, they may potentially show that they there was no intention to commit against the lawMichigan Attorney General Dana Nessel, for instance, claimed that these electors were “brainwashed.”

However, each trial may have its own arguments and defenses and it stays unclear what conclusion the jury will reach in each individual case.

Eliminate ambiguities

Could 2020 repeat itself in 2024? The probability is lower, but not unattainable.

First, Congress passed the Electoral Count Reform Act of 2022. The recent law now requires each state to certify its election results six days before the electors meet.

This signifies that there isn’t any pending litigation to cause confusion on the day of the election meeting. It creates finality before the election meeting takes place.

The The recent law also eliminates an ambiguous provision from the old law which allowed a state legislature to appoint electors after Election Day if the state had not made a selection on Election Day. Some Trump supporters invoked this provision to say that the legislature could name the Republican electors because the true winners sooner or later after Election Day.

But that provision was misunderstood—”no decision made” didn’t mean that lawmakers simply disagreed with the voters' decision on Election Day. That provision was removed, removing one other potential ambiguity in 2024.

The recent law also changes the way in which Congress counts electoral votes. First, it clarifies that the president of the Senate — often the vp — doesn’t have sole decision-making authority when Congress counts votes. In addition, the law makes it harder for members of Congress to object to the vote count.

In past years, a senator and a representative could object, forcing Congress to debate for as much as two hours. This happened once in 2005 and twice in 2021.

Instead, the brand new law increases the hurdle for objections to require the support of 20% of the members of every chamber. This makes objections much less likely. In addition, the brand new law explicitly instructs Congress that the ultimate confirmation by the states “shall be considered final.”

Of course, electors could still attempt to foment public unrest in a state if their preferred candidate loses the election. Members of Congress can still attempt to object. No law can completely eliminate the danger of post-election subversion. But these modest changes to the law will help reduce the likelihood that the aftermath of the 2024 presidential election will look anything just like the aftermath of the 2020 election.