Some supporters of President-elect Donald Trump are set to cast their states' Electoral College votes Tuesday while still dealing with felony charges stemming from the last presidential race.
Eight of this year's designated Republican presidential electors in Michigan and Nevada were indicted for taking part in what's known as the "fake electors" scheme to reverse Trump's loss in 2020.
Four years ago, they sent false certificates to state and federal officials that claimed Trump had won their states' electoral votes. This year, they are expected back as authorized electors to sign legitimate certificates that formalize Trump's recent victories in their states.
As states take the next step in the transfer of presidential power, some legal and election experts see the return of these eight criminally charged electors as reminders of how much leeway state political parties have in choosing potential electors and how much Trump has come to dominate Republican parties across the country.
Where the "fake elector" cases in Michigan and Nevada stand
While Trump's reelection has derailed the election subversion cases against the president-elect, state-level criminal prosecutions against his allies in the 2020 plot are moving forward with no possibility of presidential pardons, which cover only federal crimes.
In Michigan, the cases against six returning electors — Amy Facchinello, Hank Choate, John Haggard, Marian Sheridan, Meshawn Maddock and Timothy King, who have all pleaded not guilty — are still working their way through state court after the Democratic Michigan attorney general announced charges in July 2023.
And in Nevada, state prosecutors filed new forgery charges this month against two returning pro-Trump electors — Jesse Law and Michael McDonald, who chairs the Nevada Republican Party. A state judge in June had thrown out an earlier indictment against Law, McDonald and others because, the judge ruled, state prosecutors chose the wrong venue for the charges.
That ruling is currently on appeal at the Nevada Supreme Court, and in case it does not get overturned, Nevada Attorney General Aaron Ford, a Democrat, says his office filed the new charges in a different venue before the statute of limitations expires.
"Justice requires that we pursue wrongdoing," Ford says. "If our case proceeds to trial, we intend to hold them accountable for actions that they took years ago. It has nothing to do with their responsibilities and abilities to participate in the electoral process that they did not break the law on this go-around."
McDonald's attorney, Richard Wright, said in an email that "the refiling of the dismissed charges looks like a political move by the Attorney General," who announced the new charges and his plans to run for governor on the same day. Ford says the timing was a coincidence resulting from a reporter's inquiry about his political future and how long it took the court to process the filing.
State-level prosecutions against 2020 pro-Trump electors continue as well in Arizona and Georgia. There are also returning Republican electors who are authorized to cast this year's electoral votes in Pennsylvania, where prosecutors have not filed charges after these pro-Trump electors in 2020 signed certificates with caveats that said the documents would only be used if a court overturned their state's election results.
Why criminally charged "fake electors" can serve as authorized electors
Presidential electors are usually leaders of state or local political parties or other longtime party supporters.
"A lot of states are quite lax about the qualifications and who can serve and how they behave," says Julia Azari, a political science professor at Marquette University.
In Wisconsin, where unauthorized Republican electors also signed a false certificate in 2020, those electors are now banned by a settlement agreement from serving again in any U.S. presidential election with Trump on the ballot.
But there are no similar legal barriers for the criminally charged electors in Michigan or Nevada.
"Even if they had been convicted, at least under Michigan law, it would not preclude them from serving as electors," says Barbara McQuade, a professor at the University of Michigan Law School and a former U.S. attorney during the Obama administration. "I think probably the biggest worry is that people might have some doubt in the integrity of electors who have been accused of abusing that power in the past."
If there is any worry, that has not stopped the GOP of Michigan or Nevada from selecting these returning electors to sign their states' official Electoral College certificate this year, McQuade adds.
"To include somebody who has been previously accused of forging that document or falsely attesting to a document like that makes an interesting statement, I think, about the charges," McQuade says. "I think it says that they think the charges are insignificant, unimportant or may be some sort of badge of honor."
Both the Michigan and Nevada Republican parties did not respond to NPR's requests for comment. After the Nevada judge dismissed the earlier indictment, the Nevada GOP said in a press release that it was "pleased" and that the judge "reached the correct decision."
This year's return of criminally charged electors, Azari adds, "illustrates the ways in which the Trump movement has been incredibly successful at dominating state and local parties and also dominating the narrative around the 2020 election."
Still, McQuade pushes back against the argument that Trump's reelection in 2024 "kind of washes away all the sins" and that "anybody who did anything to get him elected in 2020 has received this sort of blessing of the voters."
"All of these people certainly are entitled to a presumption of innocence and a due process and a fair trial," McQuade says. "But I think it's important for [the state attorneys general] to see through these prosecutions so that people understand that this was a big deal and not something that we just kind of shrug our shoulders at and move on."
Edited by Benjamin Swasey
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