“Analysis of the Lawfulness of Kenneth Chesebro’s Elector Plan Under Federal Election Law”

Matthew Seligman at Just Security:

his 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….
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