Georgia Case: Kenneth Chesebro’s False Electors Scheme Was Unlawful, According To Legal Analysis In Just Security
“There is no legal or historical basis whatsoever to support the lawfulness of that plan.”
A new in-depth report in Just Security, examines the Fulton County Georgia DA’s case against attorney Kenneth Chesebro, his key role in the false electors scheme to overturn the 2020 presidential election result in Georgia and six other states, and the lawfulness of that plan.
Chesebro is one of 19 defendants, including former President Donald Trump, who were charged in the 2020 election interference case by Fulton County DA Fani Willis. Chesebro’s trial is set to begin on October 23.
As part of its examination of the Chesebro case, Analysis of the Lawfulness of Kenneth Chesebro’s Elector Plan Under Federal Election Law, provides a deeply researched overview of the Constitution’s Twelfth Amendment, the Electoral College, the Electoral Count Act of 1887, and relevant federal election law.
This new report in Just Security provides a powerful examination of Chesebro’s role in the false electors scheme and offers a clear overview of how that scheme violated the Constitution’s Twelfth Amendment and the Electoral Count Act of 1887.
Chesebro’s plan “was unlawful under federal election law,” the Just Security report concludes. “There is no legal or historical basis whatsoever to support the lawfulness of that plan.”
Analysis of the Lawfulness of Kenneth Chesebro’s Elector Plan Under Federal Election Law was written by Matthew A. Seligman, a Partner at Stris & Maher LLP and a Fellow at the Constitutional Law Center at Stanford Law School. He is a leading scholar on federal election law.
Read the full report on Just Security.
Highlights of the report follow.
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Analysis Of The Lawfulness Of Kenneth Chesebro’s Elector Plan Under Federal Election Law
The Just Security report examines the legal propriety of multiple slates of electors casting ballots purporting to be their state’s votes in the Electoral College, and, specifically, the role attorney Kenneth Chesebro played in the false electors effort to overturn the results of the 2020 presidential election.
The Fulton County indictment charges Chesebro with seven criminal offenses, all related to his involvement in planning and organizing the false electors scheme.
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. Chesebro further contends that because his conduct was purportedly consistent with federal election law, it cannot be criminal under Georgia state law.
However, the Just Security examination of the evidence and the law concludes that Chesebro’s “alleged conduct was unlawful under federal election law, which therefore does not preclude prosecution of that conduct under state criminal statutes.”
According to the Just Security report: “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.”
The report explains that 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.
The Just Security report:
>> Provides background on the legal framework governing the Electoral College and describes its application in a typical election;
>> Explores the two atypical cases that have arisen under the Electoral Count Act – the case of Hawaii in the 1960 presidential election, in which an ongoing court-ordered recount was in progress on the date that electors cast their ballots; and the case of Florida in 2000, in which a court-ordered recount was halted immediately before the date on which electors cast their ballots – and concludes neither is applicable; and
>> Reviews the evidence regarding Chesebro’s involvement in the plan to have Trump elector-nominees cast ballots purporting to be their state’s electoral votes in states where the relevant state official had certified Joe Biden’s electors; reconstructs Chesebro’s plan to have those votes be counted on January 6, 2021 (or later) or otherwise prevent the counting of the Biden electoral votes in those states; and analyzes whether the plan was consistent with federal election law and concludes that it was not.
Chesebro has suggested in court filings that the Trump elector-nominees’ casting ballots purporting to be electoral votes was authorized by the Electoral Count Act.
However, the Just Security analysis of the evidence and law shows in detail how Chesebro organized and disseminated a plan that violated the Twelfth Amendment, the Electoral Count Act of 1887, and related provisions of federal law.
“Mr. Chesebro’s legal positions were so lacking in any legal or historical basis that no reasonable attorney would propose them as part of a lawful plan. Because these plans violated the Twelfth Amendment, the Electoral Count Act of 1887, and related provisions of federal law, Mr. Chesebro’s conduct was not lawful under federal election law. Accordingly, Mr. Chesebro’s argument that federal election law precludes his prosecution for state crimes fails,” according to the Just Security report.
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