Trump’s fake electors in PA likely to avoid prosecution

This article is made possible through Spotlight PA’s collaboration with Votebeat, a nonpartisan news organization covering local election administration and voting. This article is available for reprint under the terms of Votebeat’s republishing policy.

Sixteen people in Michigan who served as so-called "fake electors" for Donald Trump are now facing state-level forgery charges, but similar prosecution appears unlikely here in Pennsylvania as the investigation into an alleged plot to overturn the 2020 election ramps up.

The Keystone State was one of seven won by President Joe Biden where groups of people gathered to submit votes for Trump instead. The plan to organize those electors is part of a federal investigation led by Special Counsel Jack Smith, which appears to be nearing criminal charges. Prosecutors in Arizona and Georgia, two states with “false electors,” are also investigating the plan.

But unlike Michigan, Pennsylvania’s alternate electors are unlikely to face criminal repercussions because of an important legal caveat they added to their document.

The term “fake electors” arose in the post-2020 election period when, in some states Biden had won, electors for Trump cast electoral votes despite Trump’s loss and then submitted their certificate of votes to Congress as well. Through investigations such as the U.S. House’s Select Committee to Investigate the January 6th Attack, “fake electors,” “false electors,” and “alternate electors” have come to represent the Trump allies who signed their name to those certificates.

Here’s what to know about Pennsylvania’s fake electors.

What are electors?

In the United States’ presidential election system, each state is represented by a certain number of electors based on its population. Electors are citizens of the state whose vote determines who wins the presidency. In 2020, Pennsylvania had 20 electoral votes.

Each presidential nominee selects a slate of electors before the general election. Once the winner of the state’s popular vote is determined, the governor authorizes that candidate’s slate to cast their votes in the electoral college (two states, Nebraska and Maine, award their electoral votes proportionally). The electors then submit a certificate of their votes to Congress, which accepts and counts those electoral votes on Jan. 6 of the year following the presidential election. A presidential candidate needs 270 or more electoral votes to win.

Because Joe Biden won the popular vote in Pennsylvania, Congress counted the state’s electoral votes for him.

Who were Pennsylvania’s fake electors?

Pennsylvania’s slate of alternate Trump electors featured 20 prominent Republicans from across the state. Among them were former U.S. Rep. and gubernatorial candidate Lou Barletta, Allegheny County Council Member Sam DeMarco, state GOP Vice Chair Bernadette Comfort, and Kevin Harley, a one-time spokesperson for former Gov. Tom Corbett.

A copy of the certificate, which lists all of the electors’ names, was obtained by the government watchdog group American Oversight (shown on page 31 of the collected documents).

How did Pennsylvania’s fake electors come together?

According to reporting from the New York Times and other news organizations, as well as Votebeat and Spotlight PA interviews with participants, the plan to convene alternate electors was organized by the Trump campaign.

Lawyers for the campaign, including former New York Mayor Rudy Giuliani, appointed a “point person” in each state to help organize the fake electors, according to the New York Times. In Pennsylvania, that person was state Sen. Doug Mastriano (R., Franklin), who reportedly needed assurances that the plan was legal.

However, two of the electors — Sam DeMarco and Charlie Gerow — said they mainly interacted with Trump attorney James Fitzpatrick.

On Dec. 14, the fake electors met in the offices of Quantum Communications — Gerow’s Harrisburg-based public affairs firm — to cast their votes for Trump. Pennsylvania law requires that the electors meet in the state capital. Biden’s electors also met in Harrisburg to cast their votes on this day.

Simultaneously, Trump had been personally contacting then-state House Speaker Bryan Cutler (R., Lancaster) and asking him what could be done to “fix” the election issues Trump was hearing about in Pennsylvania.

Cutler, according to the Washington Post, told Trump the legislature had no power to overturn the state’s popularly chosen slate of electors, meaning Biden’s electors.

Why is the situation in Pennsylvania different from other states?

Unlike in other states, Pennsylvania’s fake electors added an important caveat to the certificate that likely shielded them from the consequences faced by their counterparts in Michigan.

Pennsylvania’s certificate said the votes they were casting should only be counted if a court found that they were the “duly elected and qualified Electors.”

“The reasoning that we were given for the need to go through with this process was that [the campaign] was concerned that there was a number of court cases that the Trump campaign had not adjudicated yet,” DeMarco said, and the campaign hoped a favorable ruling for Trump in those cases might have changed the outcome of the vote.

In that scenario, DeMarco added, the campaign was concerned that if there was no slate of electors submitted under the constitutional process, the court victories would be meaningless.

“So I as well as others said, ‘Fine, but let's make the document reflect that,’” he said. “So we're a bit different from the other folks.”

New Mexico’s fake electors included similar language in their certificate.

The fake electors’ certificate in Michigan, where they were recently charged with forgery and other related crimes, included no such caveat.

Gerow echoed DeMarco’s remarks that the concern among the electors was that they would be viewed as trying to put themselves forward as the legitimately appointed electors.

“But rather, we were the placeholders in case any court found that the Biden slate that claimed to be the legitimate slate was not,” he said. “I’ve been a lawyer for almost 45 years, and I think what we did was totally appropriate.”

Still, many of Trump’s legal arguments had been settled by Dec. 14. Many of the original Trump electors, like Pennsylvania GOP Chair Lawrence Tabas, also declined to sign the certificate either due to concerns over legality or because they recognized Biden as the legitimate winner, according to the final report of the U.S. House’s Jan. 6 committee.

Kevin Greenberg, a Philadelphia-based attorney who has represented national Democratic clients, including in 2020, agreed that the caveat on the courts was an important distinction that set Pennsylvania and New Mexico apart. He said in unusual situations like Hawaii in 1960 or Florida in 2000 — situations where there was in fact a “bona fide” dispute about the results — a second, conditional slate may theoretically be appropriate.

“I understand proactively voting your electors in a truly disputed situation, but always with a crystal clear statement that your actions are not representations of victory but only a prophylactic measure in case a court action finally goes your way,” he said. “That’s why I expect Pennsylvania will not have the criminal prosecutions we are seeing elsewhere.”

“In Pennsylvania, the problem is not what these electors did, but what others did with this alternate slate — they made vastly more of it than it was,” he said.

Greenberg noted that some members of Congress voted against accepting Biden’s electors because the alternate slates had submitted votes for Trump, and other Trump allies used them as part of the pressure campaign aimed at getting then-Vice President Mike Pence to do the same, even in the case of the Pennsylvania slate’s conditional votes.

What’s the status of Pa.’s fake electors?

Neither DeMarco nor Gerow said they were worried about any criminal repercussions, and both pointed out that even Gov. Josh Shapiro, a Democrat, agreed with them.

In early 2022, Shapiro, then attorney general, said the Pennsylvania fake electors’ actions did not cross the line into criminality.

“These ‘fake ballots’ included a conditional clause that they were only to be used if a court overturned the results in Pennsylvania, which did not happen,” Shapiro said. “Though their rhetoric and policy were intentionally misleading and purposefully damaging to our democracy, based on our initial review, our office does not believe this meets the legal standards for forgery.”

A spokesperson for current Attorney General Michelle Henry said this month that the position has not changed.

The detail behind how Pennsylvania’s electors came together may still be of interest to federal investigators weighing criminal charges for Trump. The former president recently revealed that he received a target letter from Smith, indicating that criminal charges may be coming soon.

Criminal charges may also be coming soon in Georgia.

DeMarco has been open about his contact with FBI agents last spring, with whom he said he fully cooperated. Asked if he has been in contact with Smith’s investigators since he was appointed as special counsel last November, DeMarco replied only with “no comment.”

Gerow said neither he nor Kevin Harley, another member of his firm and a fellow alternate elector, have had contact with any investigators.

Correction: An earlier version of this article misstated the second state whose alternate electors included a caveat to the legitimacy of their votes.

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