Is it illegal to pretend to be part of the electoral college?

December 14, 2020 12:29 PM

Republicans are running around pretending to be state appointed electors, trying to vote or send in certificates of their votes. Is any of that illegal?

Just wondering if any of that is illegal under any federal law, or under the relevant states laws?
Maybe impersonating an officer or employee of the federal government or a state officer (not sure which they would be)? Interfering with voting rights/civil rights? Heck, mail fraud?

posted by Chrysopoeia to Law & Government (5 answers total)

No, it is not illegal. It’s just pointless. Congress makes the ultimate determination of what slates of electoral votes actually count. People can claim to be electors all they like, and send whatever votes they like to Congress. But unless their slate of votes is accepted by both houses of Congress, it won’t make any difference. And the House is controlled by Democrats and won’t vote to accept fake Trump electors.

I learned a lot from this 2019 Loyola law review article that games out a disputed presidential election. See, particularly addressing this question, the top of page 345 (PDF page 38):

But it is difficult to foresee a judicial decree, from either a state or federal court, purporting to ban a party’s slate of presidential electors from assembling on Monday, December 14. Perhaps there would be a declaratory judgment ordering that the meeting lacked any official status. But would the court order these individuals not even to assemble together to engage in discourse? Apart from raising questions regarding whether such an order would intrude upon congressional prerogatives under the Electoral Count Act (and the Twelfth Amendment), it would raise so many First Amendment and related difficulties as to seem unfathomable.

Thus, while state and federal courts may play significant roles in shaping the dynamics of a dispute that reaches Congress, by declaring who is the lawful winner of the state’s popular vote and which slate of presidential electors the state’s governor must certify as authoritative, ultimately neither the state nor federal judiciary can prevent a party’s slate of presidential electors from purporting to meet on December 14 and acting as if they can cast the state’s electoral votes—even if those individuals lack any indicia of authority under state law.

posted by snowmentality at 1:58 PM on December 14, 2020 [3 favorites]

Enforcement aside, anyone who obtains or tries to submit falsified or non-certified ballot tallies for a federal election is committing a federal crime, whoever they are or say they are:

52 U.S. Code § 20511
Criminal penalties

A person, including an election official, who in any election for Federal office—knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by—the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held, shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.
posted by They sucked his brains out! at 2:01 PM on December 14, 2020 [6 favorites]

I haven't seen any Serious Law People on Twitter talk about the possibility of prosecution, so I'm guessing no.

The Electoral Count Act is supposed to handle the case where a state submits multiple slates of electors but I don't think it assigns criminal liability, it just seeks to resolve the situation.

(disclaimer: I'm not a/your lawyer, and all that I know is from Schoolhouse Rock)
posted by RobotVoodooPower at 3:45 PM on December 14, 2020

I believe the doofs who got turned away at the manger door said they were Elector nominees.
posted by rhizome at 5:05 PM on December 14, 2020 [2 favorites]

It is not always perfectly clear what things are illegal, and what it means when they are. There are no laws that assign a penalty to this exact thing, and even if there were, you need people willing to enforce those laws. Conversely, even if there is no specific law, a prosecutor can try to make a case. If it was being done in support of the Democratic Party, the right wing media would be loudly calling it treason, and there could well be investigations or even charges resulting in, at the least, inconvenience for those involved.
posted by Nothing at 4:32 AM on December 15, 2020 [1 favorite]