January 17, 2022
In this moment of struggle over voting rights in America, it is important to distinguish between voter fraud, which is vanishingly rare and has not affected the outcome of elections, and election fraud, which is coming to characterize a number of our important elections.
Voter fraud is about an individual breaking the law and is almost always caught. It is not a threat to democracy.
Election fraud means that people in power have rigged the system so that the will of the voters is overturned. When it happens, it threatens to destroy our nation.
Now, as the contours of what happened on January 6, 2021, are becoming clearer, they appear to show a number of different schemes to overturn the election through fraud. At least one of those schemes appears to have been a coordinated attempt by members of the Trump administration and sympathizers around the country to overturn our government by committing election fraud.
As early as November 6, 2020, three days after the presidential election but before it had been decided, White House chief of staff Mark Meadows, who handled communication with the president, texted with a member of Congress about appointing alternate electors in certain states. Meadows told the lawmaker: “I love it.”
Biden was declared the winner of the election on November 7, 2020. That day, Meadows received an email suggesting “the appointment of alternate slates of electors as part of a ‘direct and collateral attack’ after the election.”
On December 1, 2020, then–Attorney General William Barr undercut Trump’s claims of voter fraud by telling the Associated Press: “[W]e have not seen fraud on a scale that could have [caused] a different outcome in the election.”
The true electors met in the states on Monday, December 14, 2020, and cast their ballots for Biden’s victory. Their states certified those ballots.
On the same day, on Fox & Friends, Trump advisor Stephen Miller announced that the campaign would overturn the election results and certify Trump as the winner. “As we speak today,” he said, “an alternate slate of electors in the contested states is going to vote, and we’re going to send those results up to Congress.” Ultimately, fake electors in seven states—New Mexico, Pennsylvania, Arizona, Georgia, Michigan, Nevada and Wisconsin—sent fake ballots to Washington. Election law experts dismissed the possibility that these fake electors could accomplish anything; the certified ballots were the true ones.
That same day, December 14, 2020, Trump announced that Attorney General William Barr was resigning. His last day at work was December 23, 2020.
Barr’s deputy, Jeffrey A. Rosen, stepped up to become the acting attorney general. Meanwhile, at the Department of Justice, the freshly appointed acting head of the civil division, Jeffrey Clark, circulated a draft letter written to officials in Georgia, dated December 28, 2020, claiming falsely that the Justice Department had “identified significant concerns that may have impacted the outcome of the election in multiple states, including the State of Georgia.” The letter attempted to make that charge seem real by calling for an investigation (a technique Republican candidates have used since 1994 to allege voter fraud when they lost elections). The letter claimed that two sets of electors had met “in Georgia and several other States… and that both sets of those ballots have been transmitted to Washington, D.C., to be opened by Vice President Pence.” The letter asked the Republican-dominated Georgia legislature to choose which set of electors was the right one after taking the alleged voter fraud into account.
Clark circulated the draft letter to Rosen and Acting Deputy Attorney General Richard Donoghue, asking them to agree to it. “I think we should get it out as soon as possible…. Personally, I see no valid downsides to sending out the letter,” he wrote. “I put it together quickly and would want to do a formal cite check before sending but I don't think we should let unnecessary moss grow on this.” Clark told them he wanted to send similar letters to “each relevant state.”
Several days later, Donoghue responded: “There is no chance that I would sign this letter or anything remotely like this.” He rejected Clark’s allegations: “[T]he investigations that I am aware of relate to suspicions of misconduct that are of such a small scale that they simply would not impact the outcome of the Presidential Election.” Later, Rosen wrote “I confirmed again today that I am not prepared to sign such a letter.”
In early January, Clark talked to Trump, who decided to fire Rosen and put Clark into Rosen’s place as acting attorney general. The remaining leaders in the Justice Department promised to resign all together if he did any such thing, and Trump backed down.
If the states themselves could not be used to invalidate the legitimate Biden electors, though, Vice President Mike Pence could. As vice president, Pence would be responsible for counting the states’ certified ballots. Lawyer John Eastman of the conservative Claremont Institute (and former law clerk for Supreme Court Justice Clarence Thomas) wrote a memo suggesting that Pence, “or Senate Pro Tempore [Chuck] Grassley, if Pence recuses himself,” could claim that “because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” Rejecting them would mean there were only 454 legitimate votes, and 228 would make up a majority.
In that scenario, “[t]here are at this point 232 votes for Trump, 222 votes for Biden,” Eastman wrote. “Pence then gavels President Trump as re-elected.”
Eastman’s memo continued: “Howls… from the Democrats…. So Pence says, fine…. [Since]... no candidate has achieved the necessary majority,” the matter goes to the House of Representatives, where each state gets a single vote. “Republicans currently control 26 of the state delegations…. Trump is reelected there as well.”
Eastman concluded: “The main thing… is that Pence should do this without asking for permission…. Let the other side challenge his actions in court,” where he expected the lawsuits would get thrown out because courts refuse to decide political questions.
The fly in this ointment turned out to be Pence, who, after conferring with advisors, steadfastly refused to act the part he had been assigned, a part that would have made him the leader of an insurrection and the obvious fall guy if things didn’t go as the conspirators had planned.
He also, though, refused to step aside, although there were clearly plans to make him do so. On January 5, Senator Grassley (R-IA) told a reporter that “we don’t expect [Pence] to be there,” and that he, Grassley, would “be presiding over the Senate.” His staff immediately walked that announcement back, saying it was a “misunderstanding.”
But Grassley’s statement reveals that the plan was widely known. Senior legal affairs reporter for Politico Kyle Cheney noted this weekend that Pence undercut those pushing him to deal with the fake electors by changing the language that explained what would be counted. The law says that the vice president must introduce all “purported” electoral votes. Pence added to the standard language that had been used for decades, saying that, according to the parliamentarian, the only votes that could be considered “regular in form and authentic” were those that had official state certification. Surely he would not have made such a change unless he felt the need to push back on those who would demand he acknowledge the fake ballots.
Frustrated by the vice president, Trump called on his followers who had planned a violent attack on the Capitol, possibly hoping to put enough pressure on Pence that he would change his mind; or to hold the lawmakers hostage until they agreed to his plan; or to slow down the process enough that the election would go to the House; or to slow it down enough that the Supreme Court, to which he had appointed three justices from whom he expected loyalty, would decide in his favor. At least four times on January 6, Trump tweeted about counting the forged ballots.
Miraculously, the plan failed, but Trump loyalists have been working ever since to make sure a repeat will not fail, passing new laws to suppress Democratic voters and take the counting of electoral votes out of the hands of nonpartisan officials and give it to Trump supporters.
This weekend, Trump told Republicans in Pennsylvania why he is focusing on races for supervisor of elections in 2022. “We have to be a lot sharper the next time when it comes to counting the vote,” he said. “There’s a famous statement: ‘Sometimes the vote counter is more important than the candidate,’ and we can’t let that ever, ever happen again. They have to get tougher and smarter.”
Voter fraud in America is vanishingly rare and has not affected the outcome of elections, and it is almost always prosecuted. But Trump loyalists used cries of voter fraud as an excuse to commit election fraud. Whether they will be prosecuted for it is an open question.