Last Updated on January 25, 2022
Pennsylvania Republicans inserted a technicality in their pledge to send alternate electors to Washington ahead of the 2020 election certification. PA GOP leaders “hedged” the language on electoral certificates to say that they would only send alternate electors following a ruling on Trump’s snap, ongoing at the time legal challenges in key swing states.
In contrast, five other states clearly stated that they were sending alternate electors for President Trump. The basis of Trump’s legal challenge required the alternate electors to actually be sent, according to a memo from Trump attorney John Eastman.
Republicans in Arizona, Georgia, Michigan, Nevada, and Wisconsin declared themselves the ““the duly elected and qualified electors,” on electoral certifications. These states, along with Pennsylvania and Nevada, were referenced in a memo from Eastman that outlined the legal basis of Trump’s election challenge. “Seven states have transmitted dual slates of electors to the President of the Senate,” the memo began.
“The 12th Amendment merely provides that ‘the President of the Senate shall, in the presence the Senate and the House of Representatives, open all the certificates and the votes shall be counted,” Eastman continued in the memo. Eastman then cited previous legal authority and historical precedence, including the 1800 election between John Adams and Thomas Jefferson.
He then laid out a six-step plan in which Vice President Pence would announce that multiple slates of electors had been sent from seven states, starting with Arizona due to order. At the end of the count, Pence could have announced that “because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454.” Eastman then cited an interpretation from Harvard Law professor Laurence Tribe, who had previously advanced this reading of the 12th Amendment.
“A ‘majority of the electors appointed’ would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected,” the memo continues.
Though Trump’s legal challenge required all seven of the states that had agreed to send alternate electors to actually do so, Pennsylvania and Nevada used hedged language that meant dual electors were never actually sent.
PA Republicans wrote that they would only cast their votes for Trump “if, as a result of a final non-appealable court order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified electors.” Trump electors in Nevada and New Mexico used similar language.
“We were not going to sign unless the language was changed to say ‘if.’ This was in no way, shape or form us trying to go around the election,” said Allegheny County Republican Committee Chairman and Trump elector Sam DeMarco. “Initially, there was a little bit of back and forth” over the electors’ attempt to change the document’s language, DeMarco said. “… We wanted to make sure we weren’t trying to position ourselves as getting in the way of Biden’s electors.”
Pennsylvania Republicans opted not to send dual electors despite numerous election irregularities and ongoing investigations that were being stonewalled by PA Democrats. Numerous Pennsylvania irregularities were laid out during a November 20 hearing in Gettysburg, PA.
At the Gettysburg hearing, witnesses testified regarding “boxes” of ballots with no chain of custody in Delaware and Philadelphia counties, mail-in ballot irregularities and statistical anomalies. Election investigations are ongoing in the state as of this writing.
Pennsylvania Attorney General Josh Shapiro — a Russian collusion conspiracy theorist — referred to the electoral certificates cited in Trump’s legal challenges as “fake” in a statement.
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,” a statement released by Shapiro’s office read.
“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.” In early 2017, Shapiro was one of 20 state AGs who signed a letter seeking a special prosecutor in the Russia probe.
