By Devon Vaughan.
The Fake Elector Scheme
On August 16, 2023, Arizona Attorney General Kris Mayes confirmed reports of an investigation that had been rumored for months: an investigation into an alleged scheme to overturn the results of the 2020 presidential election. As outlined in the federal charges filed against former President Donald Trump and his allies, this multipronged scheme involved unsubstantiated claims of widespread voter fraud as a pretense to pressure officials and lawmakers in battleground states into overriding the popular vote and approving a slate of electors contrary to state law. When this failed and President Joe Biden’s electors were certified, Republican party officials in seven states then assembled their own alternate slates of electors.
Two weeks after Biden’s victory in Arizona was certified by then-Secretary of State Katie Hobbs and then-Governor Doug Ducey, the true electors gathered to cast Arizona’s eleven electoral votes for Biden. On the same day, the state GOP chair, two Republican state lawmakers, and eight other individuals gathered for their own recorded ceremony. There, these “fake electors” signed a certificate falsely claiming to be Arizona’s electors and assigned the state’s electoral votes to Trump. Similar fake electors in other states already face criminal charges, but there was little movement to investigate Arizona’s fake electors until the state’s former Republican Attorney General left office in 2022.
While laws may differ from state to state, charges filed in Georgia and Michigan provide a blueprint for the potential criminal liability of Arizona’s fake electors. Under Arizona law, these eleven individuals could face charges ranging from misdemeanors like misuse of the state seal to felonies like forgery and tampering with public records. In addition, the fake electors—as well as Trump and his other allies—could be charged with conspiracy to commit each of these crimes, or even criminal racketeering charges under Arizona’s RICO statute.
A key question will be whether the fake electors knew their certification was fraudulent. Allegedly, the fake electors were told that their “alternate” certificates would only be used if Trump’s lawsuits challenging the vote counts succeeded, but Trump’s campaign later submitted them to Congress anyway. The hope was that then-Vice President Pence would accept the fake electors as legitimate or otherwise delay the count, despite the Vice President’s role in the electoral count being purely ceremonial. Nevertheless, by falsely certifying themselves as the “duly elected” electors from Arizona, the fake electors may still have had the requisite criminal intent.
The Other Half of the Plan
But the fake electors were just the backup plan. The original goal, after all, was allegedly to have the Arizona Legislature simply decertify Biden’s electors and send Trump’s to Congress. In the weeks after the 2020 election, over half of the state’s Republican lawmakers received emails from Virginia “Ginni” Thomas—wife of Supreme Court Justice Clarence Thomas—advising them of her belief that the Legislature has the sole authority to appoint its own slate of electors by simply overturning the popular vote. Thomas, like others in Trump’s orbit, was a vocal proponent of the “independent state legislature” theory, which purports to give state legislatures unfettered power in regulating their state’s elections. But this year the Supreme Court largely rejected this theory, stressing that lawmakers cannot insulate their unconstitutional actions from judicial review.
Yet even in 2020 there was no legal basis for the Legislature to appoint its preferred electors, as Thomas and others had encouraged. State law instead requires that Arizona’s electors vote for the President and Vice President who receive the most votes statewide. And even if the Legislature had decertified Biden’s electors and installed those for Trump, this plan was likely doomed from the start. This is because Arizona is one of 33 states which nullifies the votes of “faithless electors” who cast their votes for a candidate other than the winner of the popular vote.
These safeguards may not last, however, as bills have been introduced and narrowly defeated in 2021 and 2022 that would allow the Legislature to overturn the popular vote and reject the Secretary of State’s certification of the election results. In 2023, a former fake elector introduced a bill that would allow the Legislature to force a new election if 1,000 voters in Maricopa County had to wait for over 90 minutes in lines at polling stations, regardless of whether their votes were counted. Alternatively, 1,000 voters could force a do-over by simply swearing that an election official committed a minor technical violation of the state’s election procedures, or by swearing that a ballot’s chain of custody was compromised. Because Republican voters are more likely to vote in person after years of state lawmakers decrying mail-in ballots, the likely goal of this bill would be to throw an election into turmoil and hope that an impromptu vote would turn out differently.
The Aftermath of 2020
Despite the claims of widespread voter fraud in the 2020 election being thoroughly debunked, Arizona lawmakers continue to cite these claims to justify new restrictive voting laws that critics say will negatively impact voters in future elections. In 2021, the Legislature eliminated the state’s permanent early voting list and made mail-in voting harder for thousands of Arizonans. Lawmakers also implemented a controversial voter ID law, key provisions of which were recently struck down by a federal judge.
Additionally, there is a growing movement to reduce Arizonans’ power to thwart such actions through the ballot initiative process. In 2022, three measures—all supported by groups that generally oppose ballot measures—were voted on. Two were approved: Prop 129, requiring initiatives to only address one subject; and Prop 132, setting a 60% threshold to enact new taxes by ballot initiative. While these two measures narrowly passed, the last was thoroughly rejected by two-thirds of voters. Prop 128 would have weakened the Voter Protection Act and allowed the Legislature to completely repeal ballot measures if any small part of a measure was deemed unconstitutional. Thus, while Arizonans may be open to reasonable changes to the initiative process, these results show that the public overwhelmingly favors the direct democracy promoted by ballot initiatives.
These efforts to subvert Arizona’s elections may be alarming, but voters still wield significant legislative power. One initiative proposed in 2022, the Arizona Fair Elections Act, aimed to guard against lawmakers’ attempts to overturn the popular vote and reverse recent election laws. Namely, the initiative sought to ban legislative audits (like the widely criticized Cyber Ninjas audit), automatically register voters when applying for state IDs, and restore the permanent early voter list. Despite attaining over twice the required signatures, the Arizona Supreme Court ultimately rejected over half of these signatures and stopped the initiative from appearing on the ballot. But come 2024, Arizonans will hopefully have another opportunity to safeguard their votes against partisan interference and disenfranchisement.