To ward off a potential indictment in Fulton County, one of Georgia’s top Republicans is looking across the Pacific.
Attorneys for David Shafer, the outgoing chairman of the state GOP, are arguing that the actions of a group of Hawaii Democrats more than six decades ago justify their client’s move in 2020 to convene a meeting of “alternate” electors in Georgia supporting Donald Trump even though his opponent had won the state.
“The precise scenario which occurred in Georgia in 2020 occurred in Hawaii in 1960, except the positions of the political parties were reversed,” Shafer’s attorneys Holly Pierson and Craig Gillen wrote in a letter to Fulton County District Attorney Fani Willis in late March.
The argument is likely to play a pivotal role should Willis prosecute Shafer or any of the other “alternate” Republican electors following her examination of possible criminal interference in the state’s 2020 elections.
Among the possible charges, some legal analysts say, are making false statements, forgery, racketeering or conspiracy to commit election fraud.
Some of those observers said they viewed the comparison of Hawaii 1960 and Georgia in 2020 as specious.
“While it’s an interesting defense, it’s also a complete nonsensical one,” said Anthony Michael Kreis, an assistant professor of law at Georgia State University. “In Hawaii in 1960, there was a legitimate debate about who had won… and that was just not the case in Georgia.”
Shafer has said he gathered the Georgia electors on the advice of legal counsel to preserve Trump’s options in the state. But Georgia was also one of seven swing states in which Republicans, led by attorneys on Trump’s campaign team, hoped they could convince Vice President Mike Pence to throw out electoral votes for Democrat Joe Biden and instead count the votes for Trump, ignoring the actual results of the election.
Willis recently suggested that she would announce her indictment decisions in early or mid-August. A spokesman declined to comment for this story.
Credit: Nathan Posner
Credit: Nathan Posner
‘Act of statesmanship’
Hawaii had only been a state for about a year and was participating in its first presidential election in 1960 when an exceedingly close race cast doubt on who would win its three electoral votes.
Democrat John F. Kennedy had won enough Electoral College votes to secure the presidency. But in Hawaii, his Republican rival, Richard Nixon, had been certified the winner based on a razor-thin 140-vote margin.
Democrats challenged the result, and a recount was still underway on Dec. 19, the federally-mandated date on which presidential electors from around the country were required to cast their votes. Nixon’s electors assembled at the state Capitol in Honolulu for an official ceremony. Not far away, a group of Democrats signed their own certificates, which asserted that Kennedy had won Hawaii. Both certificates were sent to Washington.
A few weeks later, Kennedy emerged the winner on the second count, edging out Nixon with a mere 115 votes. Hawaii’s governor and then a state judge greenlit a third, official slate of Democratic electors for Congress, and Nixon, who oversaw the Senate’s Electoral College count as vice president, accepted it even though it arrived after the after the deadline. James A. Gardner, a professor at the University at Buffalo School of Law who studied the Hawaii events, described as an “act of statesmanship.”
Nixon “asked for unanimous consent for Congress to count the Kennedy electors, which he received,” Gardner said, diffusing what could have been a contentious last-minute political fight.
Sixty years later, on Dec. 14, 2020, Shafer and 15 other Republican activists huddled in Georgia’s Capitol and signed paperwork claiming to be the state’s “duly elected” presidential electors for Trump, even though two vote counts and an audit showed that Biden had won Georgia by about 12,000 votes.
In their March letter to Willis, which sought to fend off potential charges against Shafer, his lawyers argued that the underlying dynamics between the two scenarios were the same.
Both resulted in extremely close tallies: in each case less than 0.3% of the vote separated the candidates. The certification of those results prompted court challenges in both states, which were still pending as dueling slates of electors cast their ballots, Pierson and Gillen said.
They noted that neither Hawaii Democrats nor Georgia Republicans included qualifying language in their respective documents suggesting that their electoral votes were contingent on the outcome of their legal challenges.
Critically important, the attorneys added, was the fact that the alternate electors convened on the date mandated by federal law for states to cast their Electoral College votes. They highlighted an order from Ronald Jamieson, the Hawaii judge who confirmed that Kennedy had won of the state’s three electoral votes, which emphasized the importance that Democrats had met several weeks earlier, even though Nixon at the time had been the certified victor.
“Rather than suggest the uncertified Democratic electors had committed crimes, Judge Jamieson hailed them as heroes, describing their meeting as a critically important step that preserved their ability for their presidential ballots to be counted after the Democrats prevailed in their election contest and the Governor certified the Democratic contingent presidential electors as having been elected,” Pierson and Gillen said.
The attorneys included examples of when prominent Democrats evoked the Hawaii scenario during the tight 2000 presidential contest and even in the immediate aftermath of the Trump-Biden race. In other words: Democrats were for the concept of alternate electors before they were against it.
‘Justifiable basis’
Other legal and political observers are skeptical.
They argue that when Hawaii Democrats assembled in 1960 there was an active recount underway. Not only that, but the first count was so close that there was a very real chance that Kennedy could win.
“Under the circumstances of the Hawaii case, the court-ordered recount created reasonable uncertainty surrounding the vote total, giving the Kennedy electors a justifiable basis for their production of a Kennedy certificate,” the Brookings Institute, a nonpartisan Washington think tank, concluded in a report late last year.
Credit: Steve Schaefer
Credit: Steve Schaefer
Brookings and others have argued that was not the case in Georgia.
“There was less evidence to support the likelihood that there would be any change,” said Charles Bullock, a University of Georgia political science professor.
Gardner put things more bluntly.
In Georgia, we didn’t “have the secretary of state saying there’s been a mistake and officially certifying two slates,” Gardner said. “What we have is one slate of (Democratic) electors that is selected and certified according to completely lawful processes and then another slate that appoints themselves an opposing slate and decides that they’re going to just show up and hope that the vice president acts illegally and counts their votes.”
Pending challenges
Shafer’s attorneys and other legal analysts see critics’ focus on whether there was an active recount as a red herring. They said that by far the most important factor in Georgia 2020 was that there was a legal challenge pending when the electors met, one that questioned enough votes to potentially change the election outcome.
“As long as there’s an unresolved challenge out there, you can always have a (judge order a) recount,” said Todd Zywicki, a law professor at George Mason University. ”You can always have ballots excluded, a variety of things that could end up upsetting the initial results of the election.”
Ten days before Georgia electors met, Shafer had joined Trump in a challenge filed in Fulton Superior Court that contested the certification of Georgia’s election.
The suit made a series of blockbuster allegations, including that tens of thousands of ineligible voters — felons, children under 18, out-of-state residents and others — had illegally cast ballots in the election. It was largely viewed as a long shot: state officials and election experts contended its underlying analysis was “highly inaccurate,” “wildly unreliable,” and “worthless.”
The court never ended up hearing the case. Shafer blamed the judiciary for stalling until it was too late, but a subsequent ruling from U.S. District Court Judge Mark Cohen concluded that “the delay is Plaintiff’s own doing.” Attorneys had failed to pay the proper filing fee or fill out the paperwork correctly, and Cohen said they made other errors such as waiting too long to take certain legal steps.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
Last summer, Willis informed all 16 Georgia GOP electors that they were “targets” of her investigation and could see criminal charges as a result.
Prosecutors recently struck immunity deals with at least eight of the electors in exchange for their testimony, according to court filings. Shafer is not part of that group.
Whether any potential charges stick will depend on prosecutors proving the electors’ state of mind: that they knew they were doing something illegal when they acted but did it anyway.
“That’s the rub: what did they really believe and when did they believe it?” said Kreis, the GSU law professor. “I think Fani Willis knows a lot more than anybody else.”
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