Will Wisconsin’s Fake Electors Pay a Price?
Will Wisconsin’s Fake Electors Pay a Price?
Those who tried to subvert the state’s 2020 election results have faced few consequences. But thanks in part to the work of a few tenacious lawyers, that might soon change.
For Jeff Mandell, it’s personal.
The Madison attorney, tapped by Wisconsin Gov. Tony Evers as a special outside counsel for the state’s 2020 election results, spent “a tremendous amount of time” in November and December of that year responding to “frivolous, nonsense lawsuits” brought by attorneys for and supporters of President Donald Trump, who lost the state to Joe Biden by about 21,000 votes. It was an experience that drove home for him what a “tremendous and in some ways heroic job election officials all over the state had done to make sure that Wisconsinites got their say, and that the election was held in a full, fair, free manner.”
And so when he became aware, through records requests that he initiated, that these efforts included a plot to steal the election by having a slate of Republican officials sign fraudulent documents stating that Trump had won, it was not something he was willing to let slide, even though the effort did not succeed.
“I was just deeply, deeply offended by the idea that ten people who thought that they knew better than 3.3 million of their neighbors would simply impose their own preferences,” he says in an interview, referring to the historic turnout. “When this did happen, from the moment it happened, I was really horrified by it.”
Wisconsin is one of seven states—along with Arizona, Georgia, Michigan, New Mexico, Nevada, and Pennsylvania—in which fraudulent electors met on December 14, 2020, the same day as genuine electors, to sign official-looking papers asserting that Trump and not Biden had won. These were then sent to the National Archives, giving cover for then–Vice President Mike Pence to declare the loser the winner, which he refused to do.
In Michigan, state Attorney General Dana Nessel last week filed eight felony conspiracy and forgery charges against each of the 16 Republicans who sought to deliver that state’s electoral votes to Trump. The chair of the Michigan Democratic Party, Lavora Barnes, said these individuals “attempted to undermine the very foundations of our democracy, and their actions are a stain on the proud history of our state and the rule of law.”
There may be more stain-removal efforts to come. Arizona Attorney General Kris Mayes announced in March that she would “investigate the fake electors’ situation, and . . . take very seriously any effort to undermine our democracy.” In Georgia, Fulton County District Attorney Fani Willis’s investigation into Trump’s effort to pressure state officials into conjuring up enough fake votes to hand him the win has branched out to include the fake electors plot. Charges are expected in August, although around half of the state’s 16 fake electors have purportedly received immunity for their cooperation.
Citing these and other reasons, Jennifer Rubin of the Washington Post mused last week that “It is therefore conceivable that Trump could face indictment not just in Georgia but in other states in which the phony-elector scheme operated, potentially leading to multiple prosecutions in state courts where the federal pardon power is inoperative.”
Even in Wisconsin, where Democratic prosecutors have tended to view the fake electors plot with cowardly lion trepidation, there are signs that the perpetrators could yet be held to account. If that happens, it will be because of the efforts of a small but tenacious group of people including Jeff Mandell.
Mandell, cofounder and board president of Law Forward, a law firm devoted to protecting democracy in Wisconsin, played a key role in exposing the fake electors plot. “I was actually, to my knowledge, the first person in the country to really try to start to unpuzzle exactly what happened here.” It was at his instigation in mid-January 2021 that the national nonprofit group American Oversight made the requests that led to the discovery of the fake electors filings from the seven states.
On February 15, 2021, President’s Day, Law Forward asked Milwaukee District Attorney John Chisholm to investigate the matter for possible criminal charges, filed a complaint with the Wisconsin Elections Commission, and sent a letter to the state’s Office of Lawyer Regulation regarding attorney Andrew Hitt, one of the fake electors and then–state GOP chair.
It was the start of a long, often frustrating journey. Chisholm’s office, after nearly a year, responded to say that this was a matter best suited for the state Justice Department or federal prosecutors. On March 15, 2022, the actual Ides of March, the Wisconsin Elections Commission unanimously dismissed the complaint in a decision Mandell described as “procedurally tainted, based on factual errors, and legally unsupported.” Among those voting to dismiss was elections commissioner Robert Spindell, who was one of the ten fake electors. And the Office of Lawyer Regulation, a place where complaints against attorneys mostly go to die, took no action against Hitt.
Mandell and Law Forward kept pushing. In April 2022, he and staff attorney Mel Barnes, now Gov. Evers’ chief legal counsel, asked the state’s Democratic attorney general, Josh Kaul, to file a quo warranto action charging the fake electors with falsely assuming an official office. Deputy Attorney General Eric J. Wilson subsequently issued a tepid reply: “As Joe Biden and Kamala Harris were correctly certified as the winners of the 2020 election for President and Vice President in Wisconsin, the electors assigned for those candidates fulfilled their duties, and Congress properly certified Wisconsin’s electoral votes, DOJ will not be initiating a quo warranto action regarding this matter.”
Wilson’s point seemed to be that “all’s well that ends well,” says Mandell, who found this discomfiting. “It struck me that if we allowed this to happen—if people could try to subvert democracy so blatantly and there was not accountability for that, there wasn’t even public knowledge of what they had done—it would just continue to metastasize and get worse with each passing election cycle.”
In February 2022, Law Forward asked Ismael Ozanne, the Democratic district attorney of Dane County, which includes Madison, to bring charges. Mandell recalls that “senior members of [Ozanne’s] office told us they were looking into it,” but that was at least a year ago and nothing more has come to light. So Law Forward did the only thing it was able to do on its own accord: It sued the bastards.
The group’s lawsuit was filed on behalf of plaintiffs including two actual state electors in May 2022 and amended in March 2023. It alleges that the state’s ten fake electors and two instigators broke multiple laws, including, as one reporter summed it up, “counterfeiting public records, illegally interfering with official procedures, defrauding the public and engaging in conspiracy.” It also alleges that the defendants bear some responsibility for the January 6th attack on the U.S. Capitol. It seeks $2.4 million in damages.
The lawsuit names all ten individuals who met secretly at the Wisconsin state Capitol on December 14, 2020, to sign the papers attesting that Trump won the election. They are:
Andrew Hitt, then-chairman of the Republican Party of Wisconsin;
Kelly Ruh, former chairwoman of the 8th Congressional District Republican Party;
Carol Brunner, vice chairwoman of Wisconsin’s 1st Congressional District Republican Party;
Scott Grabins, then-chairman of the Dane County Republican Party;
Bill Feehan, who ran unsuccessfully for state Senate as a Republican in 2012;
Robert F. Spindell Jr., a Republican-appointed member of the Wisconsin Elections Commission;
Kathy Kiernan, chairwoman of the 5th Congressional District Republican Party;
Darryl Carlson, who ran unsuccessfully for state Assembly as a Republican in 2014;
Pam Travis, vice chair of the 7th Congressional District Republican Party; and
Mary Buestrin, former national committeewoman of the Republican Party of Wisconsin.
Spindell, who as a member of the Wisconsin Elections Commission voted against taking action against himself and others in the fake electors scheme, had in December 2020 appeared at a “stop the steal” rally at the state Capitol. This January, he sent a memo to fellow Republicans saying that he was “proud” of the “substantial & very effective Republican Coordinated Election Integrity program” that succeeded in suppressing the election turnout in “overwhelmingly Black and Hispanic areas” including Milwaukee.
Also named as defendants in the lawsuit are attorney Jim Troupis, who was Trump’s point person on 2020 election challenges, and Kenneth Chesebro, a Trump-affiliated lawyer who was described in an ethics complaint submitted to the Supreme Court of New York’s attorney grievance committee as “the apparent mastermind behind key aspects of the fake elector ploy.”
Indeed, Chesebro’s memo to Troupis, dated Nov. 18, 2020, is, according to the New York Times’s Charlie Savage, “the earliest known memo putting forward a proposal for having a slate of Trump supporters purport to be electors.” Mandell says this is what makes Wisconsin’s fake electors scheme nationally unique. As he told The Bulwark:
Initially, it was our hypothesis that Chesebro, working for the White House or for the national Trump campaign, came up with this concept and then reached out to the states that he thought were close enough that this was worth pursuing in. But it turns out that's incorrect. It was Troupis working for Trump from Wisconsin who brought Chesebro into the fold. So Wisconsin plays an outsized role, because you know, without Troupis having done so, it’s not clear this would have happened anywhere.
Mandell goes on to note that while Chesbro was overseeing the fraudulent electors scheme in seven states, “he chose to be in Wisconsin in the room with the fraudulent electors” when the fake documents were signed. “And so for all those reasons, I think that Wisconsin is a particularly important piece” of the national scheme.
In March, the Wisconsin Supreme Court’s conservative majority reappointed Troupis to its Judicial Conduct Advisory Committee, which gives formal opinions and informal advice regarding the state judicial code of conduct to judges and judicial officers.
Defenders of the pretend electors contend they were acting on advice of attorneys and that the casting of two sets of electoral votes is based on a precedent set in Hawaii during a dispute over the 1960 presidential election.
In a statement issued last week, Wisconsin GOP Executive Director Mark Jefferson said the goal was “to preserve all legal options that were being pursued and were still pending before the courts.” He added: “It is our understanding that had the courts come to a different conclusion, a meeting would have had to have taken place in order for Wisconsin's electoral votes to have counted.”
Mandell is having none of it. He calls what happened in Hawaii in1960 “an entirely incorrect analogy.” In that case, both Democratic and Republican electors met to sign two sets of papers because the election outcome was still in doubt. “It was all done completely in the open in the same room, at the same time, with the press and governor and everyone there and it was entirely aboveboard.”
In Wisconsin, the fake electors met in secret, with armed security, after the Wisconsin Supreme Court, which had the final say on the matter, had already ruled. In fact the court, notes Mandell, “went to extraordinary lengths to issue its ruling before they met.” This included holding oral arguments on Saturday, December 12, in order to craft a full written opinion declaring Biden the winner on Monday morning, in advance of the appointed time for the real electors to act.
Mandell also rejects as “profoundly misguided” the argument that the fake electors were acting on the advice of attorneys. “Yes, they were receiving legal advice from Mr. Troupis and Mr. Chesebro. Those people are not to my knowledge counsel for the Republican Party of Wisconsin, or for any of the individual electors, but were counsel to President Trump.” The fact they gave advice to people who were not their clients does not afford “any privilege or protection.”
Furthermore, Mandell says, “Legal advice to do something that’s illegal does not immunize you from the consequences of having broken the law. And it’s quite clear that what they did broke the law.”
The certificate that the fake electors signed at the instigation of Troupis and Chesebro flatly states that they are “the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Wisconsin.” Asserts Mandell: “Every single one of the people who signed those papers knew that that was not true. And they signed them anyway.”
In recent days, following the filing of criminal charges against Michigan’s fake electors, there has been renewed attention to and interest in the fake electors of Wisconsin, who did essentially the same thing.
“I’m surprised we’re not seeing dual prosecutions,” David Schultz, a legal studies and political science professor at Hamline University, told the Wisconsin State Journal. “Both in Wisconsin and in Michigan, there’s enough behavior there to implicate criminal liability.”
Wisconsin Attorney General Kaul, elected last fall to a second term, told reporters last week that he could not comment on whether his office is looking into bringing charges against the state’s fake electors, saying, “We generally don’t confirm or deny the existence of investigations at the Department of Justice except in unique public safety circumstances.” But Kaul noted that he has previously said—and still believes—that “anybody who was involved in a seditious conspiracy to overturn the results of our elections needs to be held accountable.”
Last December, in an interview with a Madison television station, Kaul noted that the federal government is conducting what he believes will be “a full and thorough investigation” of the fake electors scheme. “They will follow the facts where they lead. That doesn't preclude state action, but again, what happens is gonna depend on the facts, and ultimately, what comes of what we’re seeing play out with the federal investigation.”
In January 2022, the House January 6th Committee subpoenaed two of Wisconsin’s fraudulent electors, Andrew Hitt and Kelly Ruh. Hitt was deposed by that committee in late February of that year, saying he was told that the document signed by the fake electors “would only count if a court ruled in our favor.”
Hitt’s testimony also brought to light text exchanges regarding a call he received from Wisconsin Sen. Ron Johnson a week before the fake electors’ vote “arguing for us to have the legislature choose the electors. OMG.” Hitt conveyed this to state GOP head Jefferson, texting “There is a huge amount of pressure building on them to find a way around the electoral college.” Johnson later played a role in an attempt to deliver Wisconsin’s fraudulent certificates to Pence.
It is not clear to what extent Special Council Jack Smith is looking into charging any of the 84 individuals who played the role of fake electors in the seven states. Investigators from his probe have met with at least three election officials in Wisconsin: Madison’s municipal clerk Maribeth Witzel-Behl, Milwaukee Election Commission executive director Claire Woodall-Vogg, and Wisconsin Elections Commission administrator Meagan Wolfe.
Mandell thinks there’s plenty of wrongdoing to justify multiple actions: “My view is that the federal prosecutors should deal with violations of federal law and state prosecutors should deal with violations of state law. It's my belief the fraudulent electors violated both.” Plus state criminal convictions are not subject to presidential pardons.
Dane County Circuit Court Judge Frank Remington, assigned to the lawsuit brought by Mandell and Law Forward, recently rejected an effort by the defendants to require that each be tried separately in their home counties, saying, “Wisconsin law does not allow the problematic consequences of ten judges simultaneously litigating the same claims in ten different courts, or ten juries—some 120 jurors—hearing the same claims and rendering ten different verdicts.” Who knew?
The judge is now weighing motions filed by the defendants to dismiss, which Law Forward characterizes as dependent on a “host of meritless arguments”; Mandell says a decision is expected by July 31. A date for a trial, expected to take about a month, has already been set: September 3, 2024, just in time to prevent any of the Republican defendants from serving as electors for the 2024 presidential election, one of the goals of the suit.
Remington also recently ordered the Wisconsin Election Commission to reconsider Law Forward’s complaint against the fake electors—this time without allowing Commissioner Spindell, one of the fake electors, to take part.
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