Background

Michigan is one of seven states where “fake electors” signed false electoral certificates claiming that Donald Trump won the 2020 presidential election in their state in an attempt to undermine a free and fair election. This fake electors scheme was part of a multi-pronged effort by Trump and his allies to stop the peaceful transition of power after the 2020 election and, according to the January 6th Select Committee’s Final Report, “led directly” to the violence that occurred on January 6th. 

On November 23, 2020, the Michigan Board of State Canvassers certified Joe Biden’s victory in the state. Despite this, 16 individuals covertly met and signed documents falsely asserting that they were the legitimate electors for president and vice president from Michigan, certifying that they had convened at the State Capitol on December 14th, when in fact they had attempted to enter the State Capitol building but were denied entry by the Michigan State Police. They then mailed their fraudulent certificates to the National Archives, the President of the United States Senate, and the Archivist of the United States, as if they were legitimate electoral certificates. 

On July 18, 2023, Michigan Attorney General Dana Nessel announced criminal charges against the 16 individuals who served as fake electors in Michigan. These 16 individuals were local activists, current and former public officials, well-connected GOP operatives (including a Republican National Committee member), a sitting mayor, a town clerk and a school board member. The 16 defendants are set to be arraigned individually over the next several weeks, with two of the defendants already pleading not guilty. 

While the fake electors in Michigan may be the first charged for the scheme, they likely will not be the last, as several other jurisdictions are investigating their own fake electors. The charges in Michigan could provide a useful blueprint for seeking accountability in other states.

Charges

Each of the 16 defendants has been charged with the following offenses: 

1. Conspiracy to commit forgery (MCL § 750.157a and MCL § 750.248) and forgery (MCL § 750.248)

Forgery occurs when a person falsely makes, alters, forges or counterfeits a public record with the intent to defraud. Conspiracy to commit forgery occurs when a person conspires to do that conduct together with one or more persons. Conspiracy to commit forgery is a felony punishable by up to 14 years in prison and a $10,000 fine, and the separate offense of forgery is a felony punishable by up to 14 years in prison.

The forgery and surrounding conspiracy alleged in this case pertains to the fake electors’ agreement to gather together and sign certificates which falsely asserted that they were the “duly elected and qualified Electors for President and Vice President of the United States of America from the State of Michigan.” The indictment alleges that when the fake electors sent the documents to the National Archives and the President of the Senate, they did so in an attempt to “circumvent the lawfully cast ballots of millions of Michigan voters in a presidential election,” by fraudulently portraying themselves in a government document as the legitimate electors for their state.

2. Conspiracy to commit uttering and publishing (MCL § 750.157a and MCL § 750.249) and uttering and publishing (MCL § 750.249)

The crime of  uttering and publishing occurs when a person utters and publishes as true a certain false, forged, altered or counterfeit record, instrument or other writing, with the intent to injure or defraud, knowing said instrument to be false, altered, forged or counterfeit. Conspiracy to commit uttering and publishing occurs when a person conspires to do that conduct together with one or more persons. Conspiracy to commit uttering and publishing is a felony punishable by up to 14 years in prison and a $10,000 fine, and the separate offense of uttering and publishing is a felony punishable by up to 14 years in prison.

A defendant is guilty of the crime of uttering and publishing if they sign their name to one or more of the documents knowing it to be false. In this instance, the defendants signed false electoral certificates despite having no legal authority to act as a duly elected presidential elector in the state of Michigan. Several factors point to the fact that the defendants signed the documents knowing that they were not in fact the legally elected or qualified electors. First and foremost, it is reasonable to assume that the 16 electors were aware of the fact that they were not the duly elected electors, based upon significant media coverage of events surrounding the election. Furthermore, several of the electors filed a complaint in the U.S. District Court for the Eastern District of Michigan alleging voter fraud, which was summarily denied the week before they signed the false electoral certificates. Finally, the signing of the document was done in the confines of the basement of the Republican headquarters in Lansing, with no recording devices or cell phones allowed; the secrecy under which the scheme was conducted by the fake electors speaks to the illicit nature of their activities. 

3. Conspiracy to commit election law forgery (MCL § 750.157a and MCL § 168.933a) and election law forgery (MCL § 168.933a) 

Election law forgery occurs when a person knowingly makes, files or otherwise publishes a false document for any purpose under the Michigan Election Law, with the intent to defraud. Conspiracy to commit election law forgery occurs when a person conspires to do that conduct together with one or more persons. Both conspiracy to commit election law forgery and the separate offense of election law forgery are felonies, each punishable by up to 5 years in prison and a $10,000 fine.

Once the election had been certified by the state board of canvassers and governor in Michigan, the Republican electors no longer had any reasonable expectation that they were the duly elected presidential electors. Despite this fact, the Republican electors covertly gathered at the Michigan Republican Party headquarters and signed fraudulent documents falsely asserting that they were the duly elected and qualified electors. According to the indictment, they then caused the documents to be sent to the National Archives and the President of the Senate as part of “a coordinated effort to award the state’s electoral votes [to Trump], in place of the candidates actually elected by the people of Michigan” and by so doing, attempted to defraud the voters of Michigan of their ability to have their votes counted for their legitimately chosen candidate, Joe Biden.

Legal issues

What do the indictments mean for the defendants who are currently serving as elected officials? 

Several of the individuals indicted in the fake electors scheme are currently serving as elected officials in the state of Michigan. This indictment means different things for different elected officials, and any consequences depend on the rules of the office and particular county. 

For example, on July 20, 2023, the town clerk of Shelby Township, Stanley Grot, who was one of the 16 fake electors indicted, was informed by the Michigan Bureau of Elections that he is not allowed to administer elections while charges are pending. The position of town clerk in Shelby Township is an elected position and conducting elections is one of the primary duties of the town clerk. According to the letter from the Michigan Bureau of Elections, Grot may continue to serve in his other roles as town clerk, such as preparing agendas and recording meetings, but must recuse himself from any election-related duties. 

For Kent Vanderwood, the current mayor of the city of Wyoming, Michigan, the city released a statement saying it was aware of the charges, but that the actions “did not take place in his capacity as a city official” and as such, the legal process should be allowed to play out. Vanderwood was elected to the mayorship in August 2022; prior to this, he served on the Wyoming City Council for 16 years. 

Finally, Grand Blanc School Board member Amy Facchinello currently faces a recall effort after she was charged for her role in the fake electors scheme. 

What is an elector and how are presidential electors chosen in Michigan? 

Under Article II, Section 1 of the U.S. Constitution, each state selects “Electors” who convene at the Electoral College to elect the persons to serve as the President and Vice President. The procedure by which Michigan selects its presidential electors is set out in Chapter IV of the Michigan Election Law (MCL 168.41 – MCL 168.47). As provided by MCL 168.42 the two major political parties select 16 persons to serve as candidates for electors of president and vice-president at their fall state convention. Once the state board of canvassers certifies the results of the election, the governor then certifies the names and addresses of the “duly elected” electors from the party who received the most votes for president in that presidential election.

In Michigan, the Board of State Canvassers met on November 23, 2020 and certified that the Democratic Party nominees Joe Biden and Kamala Harris had received the greatest number of votes for president and vice president, respectively, in the state. That same day, Michigan Governor Gretchen Whitmer signed and issued an “Amended Certificate of Ascertainment of the Electors of the President and Vice President of the United States,” certifying Joe Biden’s win in the state, and determined that the Democratic electors were the duly elected electors and that the Republican nominees were not the duly elected Presidential electors and had no legal authority to act as duly elected Presidential electors. At that point, the Republican electors had no reasonable expectation to be the duly elected electors from the state of Michigan.

Intent/knowledge requirement 

Prosecutors must prove beyond a reasonable doubt that the fake electors knew they were breaking the law when they signed the fraudulent certificates. 

To support this, the prosecution’s affidavit points to a lawsuit filed on November 29, 2020, by three of the fake electors, Timothy King, Marian Sheridan and John Haggard (“the plaintiffs”) in the U.S. District Court for the Eastern District of Michigan alleging voter fraud. The plaintiffs filed a motion seeking decertification of the election results and a permanent injunction prohibiting the Michigan Governor and Secretary of State from transmitting the certified results of the 2020 presidential election to the Electoral College based on “overwhelming evidence of election tampering” and instead requiring the governor to transmit certified election results that Trump was the winner of Michigan. The court denied the plaintiff’s motion on December 7, 2020, stating that the plaintiffs were asking the court to “ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters.” 

It is difficult to conceive that the plaintiffs turned fake electors did not know about this court ruling.  Furthermore, Michigan State Senate Majority Leader Mike Shirkey and Speaker of the House Lee Chatfield announced prior to December 14, 2020 that there was “no evidence of voter fraud sufficient to affect the results of the election, and that the House and Senate would not be taking action to contest the electoral vote.” And, as previously mentioned, the signing of the documents was conducted in relative secrecy; the fake electors gathered in the basement of the Republican headquarters, with no recording devices or cell phones, and no outside parties were allowed to be present—likely demonstrating the fake elector’s knowledge of the illicit nature of their scheme. 

What do these indictments mean for other states that had fake electors? 

The indictments from Michigan are an important first step in ensuring accountability for those who participated in the fake electors component of the conspiracy to overturn the 2020 election. But Michigan is not the only state that had fake electors, and state officials have a critical role to play in pursuing accountability for those who sought to undermine our elections by violating state and federal laws through their participation in these schemes.

Trump and his allies carried out fake elector schemes in other states that Trump also lost including Arizona, Georgia, Nevada, New Mexico, Pennsylvania, and Wisconsin. It has been widely reported that Georgia is investigating its own slate of fake electors, as is Arizona Attorney General Kris Mayes. Moreover, Trump was recently indicted in the criminal investigation led by special counsel Jack Smith for his efforts to overturn the 2020 election, including the fake electors’ role in the scheme.

So while Michigan is the first of the seven states to seek accountability, it almost certainly will not be the last.

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