This report analyzes the legal propriety of multiple slates of elector-nominees casting ballots purporting to be their state’s votes in the Electoral College. Kenneth Chesebro is one of 19 co-defendants in Georgia’s state criminal indictment related to efforts to reverse the results of the 2020 presidential election in favor of Donald Trump. The indictment charges Mr. Chesebro with seven criminal offenses, all of which are related to his involvement in planning and organizing for Trump elector-nominees to cast ballots purporting to be electoral votes on December 14, 2020. In several motions, Mr. Chesebro has contended that his conduct was consistent with federal election law because the Electoral Count Act contemplates Congress receiving multiple slates of electors when it convenes on January 6. Mr. Chesebro further contends that because his conduct was purportedly consistent with federal election law, it cannot be criminal under Georgia state law.
This report concludes that Mr. Chesebro’s alleged conduct was unlawful under federal election law, which therefore does not preclude prosecution of that conduct under state criminal statutes. The Twelfth Amendment, the Electoral Count Act of 1887, and related provisions of federal law contemplate the submission of certificates from multiple slates of elector-nominees from the same state only in exceptionally narrow circumstances. Multiple slates of elector-nominees are consistent with federal law only when:
- On the date the elector-nominees must cast their ballots in the Electoral College, a good faith dispute about which slate of elector-nominees the state has lawfully appointed remains pending; and
- The elector-nominees cast ballots that purport to be the state’s votes in the Electoral College as part of a course of conduct (1) seeking to resolve the contest through the lawful procedures established for the resolution of disputes about the appointment of electors under state law, and (2) seeking for Congress to count those electoral votes pursuant to the lawful application of the provisions of the Electoral Count Act.
This report proceeds as follows. First, the report provides a background on the legal framework governing the Electoral College. Second, it describes how that legal framework applies in a typical election, in which all disputes regarding electors are definitively resolved prior to the date on which the electors vote in the Electoral College. It then describes the two atypical cases that have arisen under the Electoral Count Act: Hawaii in 1960 and Florida in 2000. Third, the report reviews the evidence regarding Mr. Chesebro’s involvement in the Trump elector-nominees casting ballots purporting to be their state’s electoral votes in states where the relevant state official had certified President Joe Biden’s electors. From this evidence, this report reconstructs Mr. Chesebro’s plan for those Trump elector-nominees’ purported votes to be counted on January 6, 2021 (or later) or otherwise prevent the counting of the Biden electoral votes in those states. Fourth, the report analyzes whether Mr. Chesebro’s plan was consistent with federal election law.
This report’s conclusions are as follows. The available evidence indicates that beginning no later than December 6, 2020, Mr. Chesebro organized and disseminated a plan for the Trump elector-nominees to cast ballots purporting to be electoral votes and for those purported electoral votes to be considered on January 6, 2021, through unlawful procedures.
- Mr. Chesebro planned for the President of the Senate to exercise unilateral authority—unsupported by and contrary to law—with respect to the electoral count by rejecting or failing to count the electoral votes cast by President Joe Biden’s electors from states where the relevant state official had certified Biden’s electors as lawfully appointed.
- In addition, although Mr. Chesebro’s memos and emails at the time contain no evidence of an alternative plan and claimed that the Electoral Count Act was unconstitutional, he has since suggested in court filings that the Trump elector-nominees’ casting ballots purporting to be electoral votes was authorized by the Electoral Count Act. That alternative plan, if it existed, would have required Congress to violate the Electoral Count Act by refusing to count the Biden electors’ votes when the plain text of 3 U.S.C. § 15 required it to do so.
- Mr. Chesebro’s memos also made passing reference to the possibility that a state legislature might appoint the Trump electors after December 14, 2020. That alternative plan would have violated Article II, section 1, clause 4 of the Constitution and 3 U.S.C. §§ 1-2.
Mr. Chesebro’s legal positions were so lacking in any legal or historical basis that no reasonable attorney would propose them as part of a lawful plan. Because these plans violated the Twelfth Amendment, the Electoral Count Act of 1887, and related provisions of federal law, Mr. Chesebro’s conduct was not lawful under federal election law. Accordingly, Mr. Chesebro’s argument that federal election law precludes his prosecution for state crimes fails.
The full report is available below as a Scribd file and is also available as a separate PDF.