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Wis. Democrats file first-of-its-kind suit vs. fake Trump electors

The Washington Post logo The Washington Post 5/17/2022 Rosalind Helderman
Observers check ballots during a Milwaukee hand recount of presidential votes in November 2020. © Nam Y. Huh/AP Observers check ballots during a Milwaukee hand recount of presidential votes in November 2020.

Three Democratic voters in Wisconsin, including two who served as electors for President Biden in 2020, filed suit Tuesday against 10 supporters of Donald Trump in the state, arguing the group engaged in a civil conspiracy to violate state and federal law when they declared themselves presidential electors in 2020 even though Biden won the state’s popular vote.

The group also sued two lawyers who worked with Trump’s campaign and advised Trump’s electors to meet in states Biden had won and declare themselves properly elected.

Wisconsin was one of five states won by Biden where Republican electors gathered Dec. 14, 2020, and declared themselves “duly elected and qualified” — then sent signed certificates to Washington purporting to affirm Trump as the actual victor of their states.

Though Biden’s win had been formally certified in their states — in some cases confirmed via recounts and upheld by courts — Trump supporters cited the actions of the electors to argue Biden’s win in the states was in doubt. They argued that when Congress met to count the electoral college votes, Vice President Mike Pence could choose to recognize Trump’s electors over Biden’s. Trump supporters violently stormed the U.S. Capitol after Pence announced he believed that the Constitution required him to recognize only official electors.

The House committee investigating the Jan. 6 attack has been exploring the origin of the plan to appoint rival slates of Trump electors. Deputy Attorney General Lisa Monaco confirmed in January that the Justice Department is also investigating whether what she termed “fraudulent elector certifications” violated federal law. And in Georgia, a local district attorney has opened an investigation into whether the appointment of fake Trump electors broke state law, said two people familiar with the investigation.

The lawsuit filed in Wisconsin’s Dane County represents a new approach to seeking to hold fake Trump electors accountable. It asks that a judge formally declare that the Trump supporters’ actions were unlawful — that they took actions that constituted a “public nuisance” under Wisconsin law, engaging in a conspiracy that violated the rights of Biden electors and voters.

It also asks that the judge require the Trump supporters to take the unusual step of correcting the historical record by sending a judicial order declaring their actions unlawful to the same government entities to which they sent certificates in 2020, including the president of the U.S. Senate and the National Archives. It also asks a judge to prohibit the defendants from ever serving as presidential electors again and require that they pay monetary damages.

“We have to have accountability for people who try to subvert our election process,” said Jeffrey Mandell, an election lawyer and founder of Law Forward, a nonprofit liberal law firm that focuses on election issues. The firm is representing the plaintiffs, as is Georgetown Law School’s Institute for Constitutional Advocacy and Protection.

“These electors decided that they knew best‚ and they disregarded the votes of almost 3.3 million people in Wisconsin in an attempt to hijack the state of Wisconsin’s role in choosing the next president,” he said.

Among the Trump electors named in the suit are Andrew Hitt, who served in December 2020 as chairman of the Republican Party of Wisconsin, as well as Robert Spindell Jr., who serves on the Wisconsin Elections Commission. The suit also names James Troupis, a retired Wisconsin judge who served as a lawyer for the Trump campaign.

Hitt, Spindell and Troupis did not immediately respond to requests for comment Tuesday.

At the time Trump electors gathered in Arizona, Georgia, Michigan, Nevada and Wisconsin — all states that had officially approved Biden electors — the moves were widely derided as political stunts intended to bolster Trump’s false allegations of fraud. Only after the Jan. 6 attack and subsequent release of internal Trump legal memos did it become clear how the campaign leveraged the rival elector slates to try to argue that congressional Republicans and Pence could overturn the election.

The Washington Post has reported that Trump’s campaign and his lawyer Rudy Giuliani helped coordinate the elector plan, and that some of those who had planned to be Trump electors before the November election refused to go along after Trump did not win the popular vote in their states.

As Giuliani coordinated plan for Trump electoral votes in states Biden won, some electors balked

Republican electors in two additional states, Pennsylvania and New Mexico, sent certificates, but those documents explicitly stated that they were to be considered only if the election results were upended.

Biden defeated Trump in Wisconsin by more than 20,000 votes, a margin that was confirmed after Trump requested a recount in the state’s two largest Democratic counties. State and federal judges also rejected challenges to Biden’s win.

Although the Wisconsin Capitol was closed to the public because of pandemic restrictions, Trump electors arranged to be admitted to the building Dec. 14, 2020 — the same day Biden electors met publicly elsewhere in the building. There, the Trump electors signed certificates declaring themselves duly elected and mailed them to the National Archives in Washington as if they were legitimate.

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