How to Prevent the Next Insurrection – One Lawsuit at a Time

 


January 6, 2021 – Trump supporters storming the U.S. Capitol. (Photo by TapTheForwardAssist | Wikimedia Commons)

Images from the January 6 insurrection are indelible. But these moments, however memorable, are only a small part of the larger story. The attack on our democracy that culminated on January 6 actually started weeks earlier, in seven state capitol buildings across the country.  The Department of Justice has rightly been working to hold accountable those who participated in the violent attack.  But the effort to hold accountable those who helped set the stage for it—the fraudulent electors in Wisconsin and elsewhere—has just begun.

 

On Monday, December 14, 2020, ten individuals entered the Wisconsin Capitol in Madison to fraudulently overturn the results of a free and fair election. Though a record-breaking 3.3 million Wisconsinites had voted weeks earlier, and though state and federal courts had affirmed the legality of the election and the accuracy of the results, these ten sought to hijack Wisconsin’s voice in selecting our next president. They met to cast a parallel slate of electoral votes for Donald Trump. Similar groups met and took similar actions in the capitals of six other states—Arizona, Georgia, Michigan, Nevada, New Mexico, and Pennsylvania—as part of a strategy aimed at having the fake slates, and not the real ones, counted when Congress met on January 6.

 

While the insurrectionists who breached the Capitol have been filing in and out of DC courtrooms to face justice, only in the last few weeks has the effort begun to bring Trump’s fraudulent electors to justice. Last month, three Wisconsin voters—including two of Wisconsin’s legally selected electors—filed a lawsuit against the fraudulent electors who sought to steal Wisconsin’s electoral votes and overturn the election results both in their state and nationally. Law Forward, along with the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, conceived this litigation and represents the plaintiffs.

 

The fraudulent electors’ scheme was as audacious as it was unprecedented. While we colloquially talk about which candidate we’ll individually vote for, it is actually the Electoral College that chooses the president. Each state gets votes in the Electoral College according to how many representatives it has in Congress. And every state chooses electors based on the results of the popular election – whichever candidate wins the election in the state, that candidate’s preordained electors cast votes for President and Vice President.

The fraudulent electors sought to short-circuit the process. Even though their candidate lost statewide and courts had ruled those results valid, they brazenly put themselves forward, casting their ballots as though they were the genuine electors and sending fraudulent papers to the President of the Senate and a handful of other government officials.

 

You may shrug at this. After all, the actual election results were widely reported, so this fraud shouldn’t really affect anything. Except that the fraudulent electors’ actions in each state were part of a coordinated nationwide scheme to overturn the election when the electoral votes were counted by Congress on January 6. The fraudulent electors provided lawmakers with alternate slates of votes to certify in place of the legitimate ones. The insurrectionists—and their congressional cheerleaders—were urging then-Vice President Mike Pence to credit the fraudulent slates instead of the real ones. The fraudulent electors’ actions were both a predicate for insurrection and fuel for the false narrative embraced by those who breached the nation’s Capitol.

 

If we do not have accountability for the fraudulent electors and unmistakable determinations that their anti-democratic actions were unacceptable, this scheme could be replicated in future attacks on our democracy.

 

Our lawsuit, filed in Wisconsin state court, seeks a judicial declaration that the defendants violated the law in seeking to overturn the will of the voters, as well as an injunction barring them from ever engaging in similar fraudulent conduct again. The court has an opportunity to definitively correct the historical record, as well as to impose fines and damages for these crimes against democracy.

 

As we the people reckon with the civic trauma of the insurrection, it is not enough to focus on accountability only for the foot soldiers of January 6 or even the influential voices who led them to the Capitol steps. To fully heal and bolster our democracy against future subversion attempts, we must look to those whose fraud helped set the insurrection in motion. This first-in-the-nation suit to hold Wisconsin’s fraudulent electors to account for their unconscionable attack on our nation is a vital part of that process. It blazes a path for how we can prevent a repeat attempt to subvert our democracy in 2024 and beyond.




Jeff Mandell

Jeff Mandell is president and lead counsel of Law Forward, a nonprofit, nonpartisan organization dedicated to protecting and advancing democracy in Wisconsin. Jeff is one of Wisconsin’s leading litigators in election law, constitutional challenges, and high-stakes appeals. He is a graduate of the University of Chicago Law School and a member of the American Law Institute.


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