Michigan’s Case against Fake GOP Electors Seeks Federal-State Cooperation

Attorney General Dana Nessel Photo Source: Attorney General Dana Nessel during a news conference in Detroit, file photo, Oct. 14, 2021. (Max Ortiz/Detroit News via AP, File)

Republicans in seven states submitted Electoral College certificates saying they were the “duly elected and qualified electors” for Donald Trump, who won their state’s 2020 Presidential elections. He did not and they were not. While several states are investigating these falsehoods, Michigan is the first to consider filing criminal charges and to ask for federal cooperation.

Michigan’s Attorney General knows that one state cannot effectively pursue the matter alone. She has referred the case to federal prosecutors who are better able to investigate the possibilities of what she believes is a multi-state conspiracy.

Although the U.S. Attorney’s Office for the Western District of Michigan has not publicly commented on her request yet, Michigan Attorney General Dana Nessel has asked them to join the investigation. She spent the last year reviewing evidence of criminal activity by 16 electors from her state and told the Associated Press that she believes they could be charged with such crimes as forgery of a public record, which carries a 14-year offense.

But, she wants federal prosecutors on board because she believes they are “best suited to probe and potentially prosecute.” Her investigation showed that it wasn’t just Michigan’s GOP electors who submitted alternative slates. Republican electors in six other states submitted similar certificates. Really similar.

The impropriety of the GOP’s illegitimate electors was first uncovered in March 2021 by the public interest group American Oversight, who obtained them under the Freedom of Information Act. American Oversight’s website explained that the group has been actively investigating what it calls “The coordinated, multi-state effort to cast doubt on the 2020 election and undermine the electoral vote process.”

MSNBC’s Rachael Maddow explained the phony elector scandal to viewers on January 11 in a show that featured an interview with Nessel. Maddow said, the “falsified statements (from the states)…which contained slightly different language in one key paragraph, all bear striking similarities in formatting and form.” She concluded, “That doesn’t happen by accident. Who organized this?”

During her interview, Nessel wondered about that, too, and logically requested assistance from federal prosecutors to find out whether her state’s experience is “part of a bigger conspiracy at play in order to undermine the legitimate results of the 2020 presidential election not just in Michigan but nationally?” She said, “It’s going to involve interviews in other states and it’s going to involve possible prosecutions in other places. I simply won’t have jurisdiction over that.” She did say that she would consider filing state charges if no federal probe was conducted.

Fake electors from Michigan, Arizona, Georgia, Nevada, New Mexico, Pennsylvania and Wisconsin all mailed invalid certificates to the Office of the Federal Register, which coordinates election activities of the Electoral College, the states and Congress. Two states tried to explain their involvement by claiming they were doing so in case it turned out that Trump actually won.

Michigan’s investigation began when Federal Register officials notified officials in Michigan Governor Gretchen Whitmer’s office on January 8 that they had received signed certificates from 16 Michigan GOP electors with information that contradicted the votes that were cast for Joe Biden, who had carried the state by 154,000 votes.

But that victory did not stop Michigan Republicans. In December, when Michigan electors cast their 16 votes for Biden at the state capitol, a separate group tried to enter the building with their own Electoral College candidates but were turned away by state police. However, when they submitted their invalid Electoral College certificates, they claimed they had met at the state capitol. Nessel also stated that she had attended the official Electoral College ceremony in the state capitol.

Gustavo Portela, a spokesperson for the Michigan Republican Party, quoted on msn.com, said, "This is nothing more than political prosecution of convenience led by Dana Nessel…(she) is playing political games with people's lives and livelihoods for the sake of scoring political points ahead of an election. It's shameful that she's had this information for a year but waited until her political ally was sworn into federal office before referring it over."

A similar complaint about phony electors has been filed with the Wisconsin Election Commission, but no action has resulted yet.

One can only wonder how whoever dreamed up this scheme could have believed it would succeed. Didn’t anyone think the phony certificates would be read and compared by trained staff in various federal offices? Didn’t they think the similarities in language and format would be spotted? And didn’t they realize that state officials like Dana Nessel would investigate the activities, find violations of state law, and refer the matter to U.S. Attorneys for further action? Didn’t they foresee a new wave of federal/state cooperation in a matter so essential to democracy?

Maureen Rubin, J.D.
Maureen Rubin, J.D.
Maureen Rubin is an Emeritus Professor of Journalism at California State University where she taught media law and writing and served as an administrator. Previously, she worked in the Carter White House and U.S. Congress, She is a graduate of Catholic University Law School and holds a Master's from USC.