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On December 14, 2020, at least 59 Republicans signed legal documents falsely claiming to be “duly” chosen voters for Donald Trump in the Electoral College, despite Trump losing their states in the 2020 election. And a key question on What the Jan. 6 committee will consider when its public hearings begin Thursday is whether it was part of a criminal effort.

The story is both central to what the committee investigated, but also developed somewhat belatedly on the periphery of its investigation into the pro-Trump riots at the US Capitol. This appears to be partly due to the complexity and lack of precedent for such a situation.

Time aside, the issue of “false voters” is still important – if not necessarily for the legal liability of “false voters”, at least for the much broader alleged conspiracy.

Let’s recap what we know about fake voters, and what it means.

The basics: Republicans in seven states that Trump lost to Joe Biden have submitted alternative voter lists. The seven states were Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. The idea was to set up alternative lists to compete with the official lists certified by these states, so that Congress could accept them in place of the official lists. Without these alternative lists, any effort to cancel the January 6, 2021 elections was even more doomed.

The effort was charged by its participants as a possibility. Voters must sign certificates on Dec. 14 to be deemed valid, and the Republicans behind the effort said they just wanted them in place in case the election results are overturned by the courts. In a few states – New Mexico and Pennsylvania – this eventuality was expressly written into the document. In the others, this was not the case, an essential fact to which we will return.

From a democratic point of view, this is very reprehensible. There was absolutely no evidence on December 14 to really question the election results. And although no evidence emerged on January 6, these alternate voter rolls figured prominently in an extraordinary and increasingly desperate plot to nullify a US election. Those close to Trump tried to get Vice President Mike Pence to take advantage of the non-existent uncertainty about the election to suggest that the official slates were invalid or suspect, in which case Trump’s alternative slates could be selected.

Which brings us to the legal issues. The first is whether those who registered to be fake voters broke the law. The second is whether their efforts, regardless of voters’ legal liability, bolstered a larger conspiracy.

Let’s start with the first.

Breaking News: The Washington Post reported on Monday that a Trump campaign official ordered fake voters gathering in Georgia to operate in “complete secrecy.” Robert Sinners told them to tell security guards at the Georgia Capitol — where they were legally required to meet — that they were there to meet state senators.

“Please at no time are you to mention anything to do with presidential voters or speak to the media,” Sinners wrote in an email the day before, Dec. 13. He now says in a statement that he was operating under the direction of senior campaign officials and Georgia GOP Chairman David Shafer.

Many critics bet after Monday’s report that it reinforced that those involved were aware that what they were doing was problematic, even illegal.

It is too early to tell. This is not the first time that someone involved has emphasized secrecy. But there are other explanations, including security issues – like Fake Wisconsin voter quoted by CNN — and that Georgia Capitol had restricted access at the time. Fake voters were denied access at the New Mexico Roundhouse and at the Michigan State Capitol, for example. There’s also the fact that many people involved in the process, in several states, including Georgia, have actually promoted their efforts. Shafer himself invited cameras to document it and spoke publicly soon after. (Shafer denied saying he told others to emphasize secrecy.)

Even if they were proud of it, of course, the effort or some aspect of it could still be criminal. There is a potentially compelling argument to be made that at least some of these documents were fraudulent and could be accused of forgery or even voter fraud. This stems from voters in five of the states – representing the 59 voters mentioned at the top – falsely claiming they were the “duly elected” voters on a legal document. (Michigan’s fake Trump voters also incorrectly claimed they voted in the state capitol.) Philip Rotner argued in the Bulwark that these were clearly crimes.

In contrast, 25 other voters in New Mexico and Pennsylvania simply said they would be duly elected. whether it was legally determined that Trump won the popular vote in their state. One could certainly interpret these contingencies as suggesting that they were concerned about the legal ramifications of claiming “duly elected” status if they did not invoke them. There is also the fact that several people invited to be fake voters refused to participate. (Perhaps they just didn’t agree with the effort or thought it had a chance of success, but it just reinforces how over the top it was all, at least.)

Democrats have considered criminally charging bogus voters. Nevada Governor Steve Sisolak’s (D) office said “it’s a crime, or should be a crime.” Michigan Attorney General Dana Nessel (D) has also said that there were crimes, referring the case to the Ministry of Justice while reserving the right to indict them. New Mexico Attorney General Hector Balderas (D) also referred him to the federaland local prosecutors in Georgia and Wisconsin reviewed the case.

A big hurdle, according to legal experts, would be proving that those involved intended claim that they were the “duly elected” voters. This is different from, for example, filing a document that would be required if the courts were to somehow overturn a particular state’s election results.

Which brings us to the potentially bigger meaning of this.

It might be difficult to prove the intent of the fake voters themselves and prosecute them. But what about those who guided the process and pushed for the alternative slates? Secrecy aside, the Post Monday night report adds to the record of Trump allies and aides such as Rudy Giuliani are involved in this process. And we know that some people around Trump viewed these fake voter lists as having utility not only if the courts overturned the results, but even in the absence of it – if Pence and congressional Republicans tried to do so themselves. same on January 6th.

It’s a process that Trump’s attorney John Eastman said involved ignoring a federal law, the Voter Count Act (which he considered unconstitutional). A federal judge ruled earlier this year that Eastman and Trump’s actions on that front were likely illegal. Eastman himself urged Georgian lawmakers, as early as December 3, 2020, to “adopt a voter list yourself.” His first memo outlining the extraordinary plot would arrive in late December.

Understanding how closely these alternative voter lists were coordinated by the Trump campaign, and what direction they were given and why, would seem to be the committee’s real focus here. Proving that the fake voters themselves committed crimes could certainly advance that effort — and several voters and others involved have been cooperating with authorities investigating these matters — but it seems useful to focus on the situation in as a whole when the January 6 committee discusses it in the coming days and weeks.

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