Read the Dec. 9 Memo on Alternate Trump Electors

TO: James R. Troupis FROM: Kenneth Chesebro DATE: December 9, 2020 RE: Statutory Requirements for December 14 Electoral Votes Here is a summary of the requirements under federal law, and under the law of the six States in controversy, concerning what is required for presidential electors to validly cast and transmit their votes. Obviously, there are party leaders and/or officials in each State who are familiar with the relevant details who would deal with the logistics, most of whom have handled such details in past elections. This memo merely supplies a general overview. It appears that even though none of the Trump-Pence electors are currently certified as having been elected by the voters of their State, most of the electors (with the possible exception of the Nevada electors) will be able to take the essential steps needed to validly cast and transmit their votes, so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election. (On why this could work, see here and here.) And, they can do so without any involvement by the governor or any other state official (except, in some States, where access to the Capitol Building is or might be needed, or where the Governor must approve a substitute elector or, in Nevada, where the Secretary of State is involved). It is important that the Trump-Pence Campaign focus carefully on these details, as soon as possible, if the aim is to ensure that all 79 electoral votes are properly cast and transmitted – each electoral vote being potentially important if the election ultimately extends to, and perhaps past, January 6 in Congress. The National Archives has a very helpful checklist, here. I. FEDERAL LAW The federal-law requirements for the December 14 electors’ meeting are set out in 3 U.S.C. §§ 6-11 (copy here). ! Under federal law, the Trump-Pence electors must all meet, together, on December 14, “at such place in each State as the legislature of such State shall direct.” 3 U.S.C. § 7. ! In most States there is no requirement that they meet in public. It might be preferable for them to meet in private, if possible, to thwart the ability of protesters to disrupt the event. Witness, via this video, what happened when the Trump-Pence electors met in public in Wisconsin in 2016, even though the Trump- Pence victory had not been contested. Even if held in private, perhaps print and even TV journalists would be invited to attend to cover the event. M E M O R A N D U M

Statutory Requirements for December 14 Electoral Votes 2 ! Preferably all electors who were on the ballot in the particular State would be in attendance. But if some are unwilling (due to intimidation) or unable to make it, at least four of the States permit the electors who do attend to fill the empty slots with alternates. However, it is vital that any party stalwarts who are on hand to fill in if necessary be constitutionally eligible to serve – i.e., per Art. II, § 1, cl. 2, not a federal official or federal employee (not even having reserve status in the military). ! The electors would then all vote for Trump for President, and Pence for Vice President, separately. 3 U.S.C. § 8. ! The electors would then prepare and sign six identical sets of papers – “certificates” – listing under separate headings their votes, indicating that each of them has voted for Trump for President, and Pence for Vice President. 3 U.S.C. § 9. (For examples, see here the 2016 certificate signed in Wisconsin by its ten electors; images of the certificates submitted in 2016 are archived here). ! The only thing ordinarily contemplated by § 9 that the Trump-Pence electors would not be able to do is include with their certificates the certificate of ascertainment that the governor is directed to give the winning electors pursuant to 3 U.S.C. § 6. But, as the Hawaii 1960 example shows (see here and here), this is hardly fatal; proof that the Trump-Pence electors are the validly appointed ones can be furnished to Congress before it meets on January 6. ! Next, the electors would place each certificate in a separate envelope, seal up the envelopes, and indicate on the outside of the envelopes that they contain the votes of the State for President and Vice President. 3 U.S.C. § 10. ! Finally, the electors would transmit the six envelopes containing identical originals of their votes as follows: –1 to the President of the Senate, by registered mail, on the same day (“forthwith”). –2 to the Secretary of State of the State, one to be held in reserve for the President of the Senate, and the other to be preserved as a public record. –2 to the National Archives, one to be held in reserve for the President of the Senate, and the other to be preserved as a public record, also by registered mail (“[o]n the day thereafter”). –1 to the federal district court where the electors meet.

Statutory Requirements for December 14 Electoral Votes 3 II. STATE LAW The most straightforward State is Arizona, whose statutory provision regarding presidential elections lists no additional requirements beyond the federal- law requirements set out above. Ariz. Rev. Stats. § 16-212 (here). Assuming it is confirmed that there are no additional requirements (check carefully; perhaps there are regulations, for example, issued by the Secretary of State), the Trump-Pence electors presumably could meet and cast their votes anywhere in Arizona, anytime on December 14. One concern: if one or more electors are absent from the meeting, is there a procedure under Arizona law for filling vacancies? The other five States make provision for that contingency. In the absence of any guidance, the electors present should simply vote to fill any vacancy. Ga. Code Ann. § 21-2-11 (here) requires that the electors “assemble at the seat of government of this state at 12:00 Noon” on December 14. But what does “seat of government” mean? See here. At minimum, they must meet somewhere in Atlanta – must they meet in the Capitol Building? Ga. Code Ann. § 21-2-12 (here) supplies a mechanism for replacing one or more of the 16 electors if someone dies or fails to attend. In that event, the electors in attendance “shall proceed to choose by voice vote a person of the same political party . . . to fill the vacancy . . . .” However, there’s a wrinkle. Unlike in other States, where that choice is automatically effective, in Georgia a choice must be ratified: “immediately after such choice the name of the person so chosen shall be transmitted by the presiding officer of the college to the Governor, who shall immediately cause notice of his or her election in writing to be given to such person.” Could the Governor, in the current situation, refuse to ratify the choice, on the ground that this slate of electors is not the one the voters elected on Nov. 3 (according to the official canvass)? Given this statutory provision, it seems imperative that every effort be made to secure the participation of all 16 electors, and to avoid making a substitution if at all possible. A. Arizona: 11 electors B. Georgia: 16 electors Georgia has two statutory provisions:

Statutory Requirements for December 14 Electoral Votes 4 The relevant provisions of Michigan law are Mich. Comp. Laws §§ 168.41 & 168.47 (here). Michigan is much more specific about the location in which electors must meet, which could be a bit awkward. Under § 168.47, the electors “shall convene in the senate chamber at the capitol of the state at 2 p.m., eastern standard time . . . .” However, there is no requirement that they convene on the senate floor where, presumably, the Biden- Harris electors will convene. Presumably they could convene in the senate gallery. Replacement of any absent elector is much easier than in Georgia: the electors who show up “shall proceed to fill such vacancy by ballot, by a plurality of votes.” However, the qualifications for such replacement are more stringent than the federal requirements: under § 168.41, a Michigan elector must have been a U.S. citizen for at least 10 years, and a resident of Michigan for at least a year prior to Nov. 3. Nevada is an extremely problematic State, because it requires the meeting of the electors to be overseen by the Secretary of State, who is only supposed to permit electoral votes for the winner of the popular vote in Nevada. Nev. Rev. Stats. §§ 298.065, 298.075 (see here). These provisions are designed to thwart the “faithless elector.” They make no sense when applied to this situation, in which we are trying to have an alternate slate vote, in hopes that its legitimacy will be validated before January 6. Therefore, perhaps arguably the Nevada electors could simply meet and cast their votes, without the involvement of the Secretary of State. After all if, as in the Hawaii example in 1960, an alternate slate can meet and vote without the Governor’s certificate in hand, and the votes can later be deemed valid, then why should it matter that the alternate slate in Arizona, when voting on December 14, did not have the Secretary of State overseeing their voting? It bears notice that in any scenario in which Trump and Pence might have a possibility of winning Nevada’s electoral votes, the failure to have the Secretary of State oversee the vote would hardly seem like a significant hurdle. If there were a vote in Congress to take Nevada away from Biden and Harris, presumably along with it would come a vote to overlook this procedural detail. C. Michigan: 16 electors D. Nevada: 6 electors

Statutory Requirements for December 14 Electoral Votes 5 25 Pa. Stats. § 3192 (here) states that the electors “shall assemble at the seat of government of this Commonwealth, at 12 o'clock noon of” December 14. Again, does “seat of government” mean somewhere in Harrisburg, or does it instead mean the Capitol Building, specifically? 25 Pa. Stats. § 3194 (here) supplies a mechanism for replacing one or more of the 20 electors if someone dies or fails to attend. In that event, the electors in attendance “shall proceed to choose viva voce a person of the same political party . . . to fill the vacancy . . . .” However, just as in Georgia, there is a wrinkle: the choice must be ratified: “immediately after such choice the name of the person so chosen shall be transmitted by the presiding officer of the college to the Governor, who shall forthwith cause notice in writing to be given to such person of his election . . . .” Given this statutory provision, it seems imperative that every effort be made to secure the participation of all 20 electors, and to avoid making a substitution if at all possible. Under Wisconsin law, the electors “shall meet at the state capitol,” which presumably means the Capitol Building (“state capitol” being a term more specific than “seat of government”), “at 12:00 noon.” Wis. Stat. § 7.75(1) (here). Any absent elector may readily be replaced. Id. (“if there is a vacancy in the office of an elector due to death, refusal to act, failure to attend or other cause, the electors present shall immediately proceed to fill by ballot, by a plurality of votes, the electoral college vacancy.”). In conclusion, it appears that voting by an alternate slate of electors is unproblematic in Arizona and Wisconsin; slightly problematic in Michigan (requiring access to the senate chamber); somewhat dicey in Georgia and Pennsylvania in the event that one or more electors don’t attend (require gubernatorial ratification of alternates); and very problematic in Nevada (given the role accorded to the Secretary of State). E. Pennsylvania: 20 electors The statutory provisions in Pennsylvania parallel those in Georgia. F. Wisconsin: 10 electors K.C. * * *