The Fake Electors Case in Arizona: A Study of the 2020 U.S. Election and the Legal Challenges Faced by the Trump Campaign

1. Introduction

This paper offers a discussion and case study of the "Fake Electors Case." The Fake Electors Case is an otherwise unremarkable run-of-the-mill statutory constructively fraudulent scheme to have reconstruction of the election results after the deadline to contest the selection. But Donohue and Ward et al purported to bring their scheme as a lawsuit under the Constitution as Ward v. Jackson because they claimed the US Centurial Presidential Election violates the U.S. Constitution. This case is an example that reflects the election conducted in 2020 and the challenges faced by many attorneys in the United States to defend the election (or defend counsel in defending the election). This paper ultimately concludes that the Arizona Supreme Court was right in throwing this laches case based on Haver and Fetzer out of State Court on federal court action removal grounds, but one cannot condone even looking at a laches case if it can substantially undo a national popular vote election and not hold the reconstruction of the election untimely.

I start by introducing the election and the claims raised in Ward. I then describe Ward within its Post Haver election contest context, which is important in understanding how to understand Ward. I describe in some detail the Plaintiffs' claims in Ward. I also set out the earlier historical Ward v. Jackson case brought by dissident Republicans seeking to decertify Biden's Arizona win and permit the Arizona legislature to appoint Whomever. The Ninth Circuit's per curiam decision affirming the dismissal of Ward is instructive in laying out on our current margins what is not.

1.1. Background of the 2020 U.S. Presidential Election

The 2020 U.S. presidential election was historical in many ways. In the middle of a global pandemic, President Donald J. Trump sought re-election against former Vice President Joseph R. Biden, Jr. The New York Times announced Biden as the President-elect that Saturday after the election. Trump, though, repeated that the election was rigged soon after the election. According to the former president and his allies, the outcome was rejected by more than 74 million voters. Promoted as a way to contest the results, a movement to flip states and usurp vote tallies prioritizing Biden took off. Lawsuits in Federal Court and an internal audit of the 2020 vote in Maricopa County, Arizona were the principal legal means by which these objectives have been pursued. This recall effort includes the proceedings to overturn elections in the areas of Arizona counties.

For election purposes, two main Arizona rules were relevant. With varying details, the state twice appointed a group of individuals chosen by the political parties to choose presidential race electors. The focus is on an Elector who tried to challenge the results by "suing" for instance, has latched on to his own reputation. Sierra also fits into that sector of the public debate. The litigation of Sierra, however, shows some particular principles and suggestions. Such collective action litigation is, in the electronic age, new for the federal courts. Based appearances seem to differ solely on the political alliances of the elections, while primarily predicted cases will be issued within months. With that objective in mind, this Article's purpose is to create and assess a series of legal interventions before, during, and after the decision to gather for questioning in Congress, the so-called Arizona electors' false challenges, or transition.

2. The Electoral College and the Role of Electors

The Electoral College, a system for indirectly electing the President and Vice President of the USA, has been operating within its current parameters since the Twelfth Amendment of 1804 reconfigured the formula after the original method no longer reflected a politically viable solution. Though the operation of the Electoral College can be separated from the functioning of the rest of the voting system, as was historically the case, states have largely been entrusted with allocating electors as they see fit with only some exceptions having been imposed by federal law. These exceptions possess limited sway over the national system. Eligible citizens cast votes for elector candidates through ballots published by state authorities. Each state is allocated one elector for each of its electoral votes. Full faith and credit is given to the credentials of the reputable body that any given state sends to the Electoral College. In the 2020 general election, for example, the 535 elector candidates ran under the legal rigidities of the political campaign finance system on the same tickets as their presidential candidates.

The U.S. Constitution makes no positive statements that oblige the elector to vote in the Electoral College as they had promised on the campaign trail, even though in nearly all instances they are "faithful" electors. The legal significance of electors is therefore dependent on their function as surrogate voters rather than on any inherent popular democratic legitimacy derived from their "vote" in the usual sense of the word since the enactment of the Twentieth Amendment. The November general elections hold no more legal significance to the results of the Electoral College than any other expressions of public opinion. The decree of 1948 (Ray v. Blair) by the Supreme Court became the factual cement for the "faithful elector" era, all but binding elector votes to the outcome of the popular election. As the Court put in Hunter v. Hamilton, if the states say that the elector must do "one thing or the other when he votes," then "the extent to which his vote may be reviewed upon the score of his motives for voting becomes unimportant".

2.1. The Process of Selecting Electors

Generally, each political party represented on the ballot selects its slate of electors during its state convention or a meeting of its entire slate of candidates, and it forwards the slate to the office of the Secretary of State. Each slate will be headed by the names of the Presidential and Vice-Presidential nominees, who appeared on the ballot under the party's name, and then followed by the names of the elector-candidates themselves. The combined vote for President and vice president is referred to as a "ticket," and during a presidential election a vote is essentially a vote for the entire Presidential-electoral ticket. Running for elector was once considered to be a great political honor, but today with the advent of political partisanship, the candidates for elector are typically unknown by most voters in the states when they vote. Other than the Constitution's criterion that members of Congress cannot "hold perfect college or position of trust or profit," all of the criteria for selecting electors are left specifically for the states to determine. What we have then is a federal/state system, which operates similarly in all the states.

The Constitution specifically provides that the individual states of the union shall determine the method of appointing their electors. Every state has approved the voting option for selecting Presidential electors to date. Most laws are not too specific on many issues regarding the selecting of presidential electors. There are just a few general requirements that are typically present within the state laws. These requirements are: (1) no one can serve as an elector if holding a federal office or have any conflict of interest or actively participating in the election process; (2) The electors shall have been a resident of the state they represent for a specified minimum period; (3) pay taxes; and/or (4) pledge in writing to vote for the political party presidential nominee. Some state laws contain other provisos also. For example, the elector candidates may be prohibited from being supporters of any other political party if affiliated with one party. Most state laws are silent on the issue of ballot access for presidential elector candidates as it is also a political party issue. The political parties place the names of those who have successfully navigated their party's nominating process on the general election ballot.

3. The Fake Electors Case in Arizona

One of the many unsuccessful legal challenges to the outcome of the 2020 US presidential election was famously characterized by a federal attorney as "pure and simple insanity." Another former Justice Department official told the New York Times that the relevant litigation was so "clownish and utterly without merit" that it was nearly the point of not wasting valuable court staff time by even responding to the cases. Piling on, a Time news report painted a tragic, dark portrait of Trump-appointed judges sidelined under pressure from the president. The case at issue was the second in a sequence of three related but independent legal headliners, including two in Arizona and one in Nevada. Here I report on the first Arizona case, which resulted in a published federal district court opinion. Although the case began over a year ago, it is a remarkable case - "staggering," even - in its own right, and constitutes an important contribution to our understanding of the 2020 election cycle as a whole.

Judy Burges, a member of the Arizona Senate, filed a "quixotic" complaint in federal court in December of 2020, challenging the legitimacy of the presidential slate appointed by Arizona's Republican governor but sent to the US Archivist by the state's Democrat-appointed Secretary of State. Co-defendants Governor Doug Ducey and Secretary of State Katie Hobbs filed a joint motion to dismiss with a supporting brief authored in part by then-acting Deputy Solicitor General Isaac Gabbard. The reasoning of both feels the hot return of substantial breeze that extends all the way down the Election Clause line, to tell outcomes also in the Consolidated Matters. In the second, the State has also wielded an analytical machete to slash down assessment of the complaint's poor prospects in federal court. Interval 7, at 1 (quoting Hayes-Doering Time now precise).

3.1. Overview of the Case

This article analyzes a complaint filed in 2020 with the U.S. Supreme Court but denied cert., which is informally labeled as the 'Fake Electors case'. The case is a legitimate avenue for thinking deeply about the 2020 election and understanding the numerous legal challenges brought forth by the Trump campaign. In many ways, the issues raised centered on the way the 2020 election was held and litigated. This section provides an overview of the case.

On November 7, 2020, then-candidate Biden, represented by President Biden's own legal team, formally challenged the results of Arizona's election in a complaint. The complaint alleged 'fraud or irregularities' in the conduct of Arizona's general election and alleged that the Arizona Secretary of State, a democratically elected official similar to the post of a minister without portfolio, had 'reversed the election results' by intentionally 'counting ballot cast by the wrong precinct or polling place' pursuant to then-prevailing state law. In short, the remedy sought was a new election or alternatively, damages. The complaint alleged that no one else had standing to file the lawsuit, further arguing that no one could challenge the Secretary of State's decision process. At least five other lawsuits were filed by either then-candidate Trump and/or later President Trump directly or in connection with a recount. Arizona voters also filed at least one lawsuit that was incorporated into one of the Trump campaign legal efforts. The current complaint, however, was filed on December 7, 2020. Only four days later, on December 11, 2020, the Court denied cert.

3.2. Allegations and Legal Arguments

There were both allegations regarding voting processes and the administration of the 2020 election, as well as allegations centered on the state planning the elections, all of which were in violation of either state or federal laws. In the Fake Elector Law Suit—or in the Electoral College Act (3 U.S. Code §5 and §6), 500 electors whose votes weren't counted in the so-called Safe Harbor deadline in accordance with the U.S. Code (3 USC §5), because each elector's specific election lacked proper representation of federal law (Title 3 cf §7 U.S. Code, for example) were counted by state law and not federal law and then sent to Congress on January 6, 2021—these rejected votes would alter or change the outcome of the government of the United States, by rejecting the former vice-president Mike Pence's votes.

The Arizona claim allegations were: 1) other sub-groups of votes were illegal; 2) Gov. Ducey did not pick the slate of electors who were legally chosen by Arizona voters; 3) federal polling has no standing in this state; and 4) that the canvass is "amendable." Of particular note, the illegal voters in the complaint are voting centers (a poll located in the county but run by state poll workers) and federal Indian reservations. Note that the complaint rejects examining ballots or questioning itself. Books and records of franchise elections were tracked, and specific (legally cast) ballots were observed. All evidence examined was from this authorized absentee ballot recount.

4. Legal Implications and Challenges for the Trump Campaign

Legal implications and challenges for the Trump campaign in the aftermath of this ruling, the Trump legal campaign filed on January 4th an objection and a complaint with the occupied U.S. Congress and the U.S. Senate on the 2020 U.S. presidential election results. As on December 14th, 2020, in the Congress, the mainstream U.S. media hides the facts and refuses to report. What are the practical and strategic consequences of this decision? What is the judge's right and duty to reject the legal actions and why? What have been the legal hurdles of this campaign? And many other relevant questions will be discussed in the second part of this U.S. election study, which is dedicated to the legal impact of the 2020 U.S. election.

The warning that the Trump attorneys have begun to realize may be one where challenging the U.S. election results in the courts does not adequately address the facts and the huge mountain of real evidence that they have in their hands. By now, the Republicans in Arizona and Gov. Doug Ducey had rejected the calls to decertify the results of the 2020 U.S. election or at least to hold a new election. There were 9 fake electors who had registered their state's votes, and Trump's legal team attempted to go after the Secretary of State also. "The fact still remains do they even have legal standing to sue?" one attorney said on Tuesday night. With lawyers this close to Donald Trump and his efforts to challenge the 2020 election results now working to bar Joe Biden from the presidency through Congressional review, they have long held that they could stand in the way of Arizona's decision.

5. Analysis of the Evidence Presented in the Case

Much of the evidence that was introduced was what is called witness statements. These are declarations, usually signed under penalty of perjury, that can be admitted into evidence under certain court rules. These are typically presented when there are reasons that the witness should not or cannot appear in court. Nonetheless, the hearing included testimony from three different live expert witnesses who were called to the stand to help interpret or explain the evidence presented. The experts generally provided some very detailed and technical information regarding the operation and vulnerability of voting machines, as well as the character of the data now available from the 2020 U.S. election. Two of the experts were flown in from outside the state, while one happens to be an Arizona resident.

Here's a simple breakdown of the main evidence presented at the court hearing. Given the nature of courts and the process of trial, the parties were asked to introduce what is called an "exhibit list". This is a list of all the documentary evidence that a party plans to introduce, along with a brief description of the evidence. When the judge and opposing parties agree that an exhibit should be introduced, that exhibit is marked and admitted into evidence with its own identifying number. A vaudeville-style hearing wouldn't normally have introduced such technical and voluminous evidence, which is why the hearing had to be divided into two days. You can find the parties' exhibit lists on a website that has been collecting all the case documents. The companies that provide paper and digital ballot forms to Arizona county governments were both served a request to produce copies of the 2020 originals and all duplicates. This is routine practice in securing the evidence for any investigation along these lines.

5.1. Witness Testimonies

The testimonies presented before the court by several witnesses offer the possibility of directly assessing the alignment of the testimonies with the lawsuit. As a condition for the court's ruling, rather than as its content, the court here does evaluate the relevance of the testimonies to the case. The court does conclude that half of the witnesses, those who were appointed as electors, had testimonies to give relevant to the ruling and the area of the complaint. Among these, the complaint from the original proposition appears to give Alston the final vote to testify, although the witness-spot legitimacy of the Nemanwa selection should not have been conclusive. The court will now evaluate whether the content and manner of these testimonies are credible.

The risks of inaccuracy and biases extend to any witness, including electors, who naturally exhibit the same shortcomings as everyone else, compounded by their partisanship and the impact on their reputation of his selection as elector. Given that the impugnment charge of an elector should have been affirmed only by challenging Republican electors appointed by GOP Establishment luminaries, the effect of partisanship might not have been entirely negative, but there should at the very least be reservations about their evidence at its very source which should continue until the point of confirmation.

5.2. Documentary Evidence

There are hundreds of pages of documentary evidence submitted as part of the Fake Electors Case in Arizona, including declarations of multiple witnesses. While complete evidentiary analysis is outside the remit of this paper, some observations about the evidence can be made. The documentary evidence submitted in this case by the amici was a mixture of documents created by third parties, or through systematic collection processes, and documents created by the pro se parties themselves. There is a wide variety of documents submitted with a range of probative value. On the whole, the evidence does not favor the pro se parties' case. Although it is not possible to do a comprehensive analysis of the many documents submitted, the law should disfavor their eventual admittance.

The more useful documentary evidence submitted is testimony from local actors engaged in the implementation of the election. These parties have direct sensory perception of the election process. These types of statements have important probative value. Most of the documents submitted can be classified as "hearsay" (a statement made out of court and, while offered in court as persuasive proof of the matter asserted, is not made under oath or affirmation in court, and does not by itself establish the truth of the content of the statement). Some may also be considered "hearsay within hearsay" — when while the person may not have direct sensory perception of the event, if they instead personally interacted with a person directly involved in the election process (a poll worker, a vote counter, or an elections official), and retrieved some document or recording of the event, that would-be evidence is also itself hearsay. It is also important to note that out-of-court statements offered as evidence may be subject to common law and state-specific exceptions on hearsay or hearsay within hearsay evidence.

6. Public Opinion and Media Coverage

The public does not universally believe that no one intended for the Arizona litigation to change the outcome of the electors' votes, or that it was "just a stunt." But there is a clear framing that the press uses to place the 2020 Arizona "fake electors" cases into focus and prioritize its telling. These comments matter as much as, or perhaps more than, the Trump Campaign litigation. The masses want to contrast the 2020 cases with the 1960 manipulation of Hawaii electors story in a presidential race that was even closer than Trump v. Biden. They also want to compare and contrast the 1969 House Un-American Activities Committee claim of manipulated Kansas and Ohio electors to the Arizona 2020 false electors' claim.

In today's information age, public perception is informed by the media coverage that forms the boundaries on discourse—and often organizations and companies are required to engage in public debates that can have substantial impact on their success. A broader point and importance is that these comments shape the popular real-world understanding of the grand narrative of what happened as to the 2020 presidential election. Narratives that form public perception are fair game to be part of legal drafting and argument because they are the story of the event in the first place. They are not the type of news reporting and commentary that outputs marketable semantic facts when they are not on videotape, like the doings of the attorney in Trump. They drive reasoned dialog on public policy or law. More importantly, the grand public narrative is the one court records cannot take a clear role in breaking. It matters to the fatally flawed claims of a submission of electoral votes. The public opinion counts in political campaign body blows.

7. Comparative Analysis with Previous Election Disputes

Situating this study within a historical and comparative context, it is notable that Arizona outlasted the U.S. Supreme Court's initial revelational stage for election disputes. This was despite the fact that many of the legal arguments made by Pennsylvania's presidential electors were in conversation with a body of legal claims and intellectual arguments that had developed in symphony with the effort to get the Supreme Court to hear these challenges brought hard by the Trump campaign.

The Arizona lawsuit was more in the lane of the Pennsylvania election dispute than the prior lawsuits. Even before Arizona was filed, obvious comparisons could be drawn with cases like Trump v. Padilla, In Re Scarnati, and Bush v. Gore. Or the style of 2020 election disputes filed in litigation on behalf of the current/recent U.S. president. Pennsylvania also teed up a situation where conflicting state and/or federal election law statutes were in direct conflict with each other and had been executed in the recent or not too distant past, another repeated factual circumstance repeated through these cases. But there are differences between the most recent Arizona lawsuit(s) and election contests reaching back in the history of U.S. litigation. Examining these similarities and differences, it's debatable that the distinctions primarily swung on shifts in basic political alignments between the early 2000s and the 2020s. For the better part of the past twenty years, slugging litigation through various state and federal courts, the U.S. Supreme Court had either ruled on or looked at least preliminarily into these lawsuits before an elector announced possible alternate votes.

8. The Role of State and Federal Courts in Election Disputes

The judiciary plays a significant role in the election process. On the state level, the judiciary can be the final word on election disputes if state law allows the courts to interpret provisions of law and ultimately determine challenges made by the candidates or other complainants. Disputes commonly handled by state courts include filing deadlines, requirements for petition signatures, ballot access, residency, and voter eligibility issues as well as those challenging results based on recounts. Federal law, as well as constitutional provisions, protect voting rights, including the right to have votes counted and the equal protection of laws. These protections serve as the lynchpin for federal court supervision. When claims implicate these fundamental rights, individuals can elect to file a case in federal court as opposed to the state courts. Federal courts can also assume jurisdiction when parties disagree on the interpretation of federal law. When federal candidates bring cases or counterclaims in federal court, district courts are required to expedite cases as a matter of urgency.

What is clear from the legal requirements and the processes that played out in the 2020 U.S. Presidential Election is the essential role of the judiciary in protecting the democratic process. Individual disputes are resolved by the courts based on legal arguments and evidence when challenges are filed. Judges are responsible for interpreting the law within the Constitutional framework. But the broader implication of a decision also determines the trajectory of electoral behavior as decisions either validate the system or suggest a diseased process. Decisions may be based on law, but marshaling evidence and argument to influence a court about the potential impact of its decision on the political process is also part of court strategy.

9. Constitutional Implications and Precedents

The fake electors case in Arizona implicates questions of constitutional interpretation that have been rarely explored, as well as a discussion of whether there are enough facts to sustain a cause of action for relief. Because there are so few constitutional provisions that address who has the power and the duty to count electoral votes, determining the proper forum to resolve intra-state disputes over the fidelity to state laws is based on the legal precedents that have arisen from those very rare cases.

The nadir of the unconstitutional constitutionalism arose after the Civil War, when Southern states took the position that their electorate was either too frightened or terrified to make a free choice, that one of the Reconstruction amendments pre-empted the grounds of their original readmission, and that the United States Congress had no authority over the qualifications for office as they arose from the state electorate responsible for the election. This led into the legal argument in the Reconstruction cases. These cases have been used by the country for students in education to examine the extent of executive power and his or her power to influence elections. It was a troubling time in a democracy where application of the original intent has been applied or even a legal theory to undermine the laws created by the state.

"...the legislature in this state is ignored, the courts are ignored, the Secretary of State is ignored, and the electors are told to ignore the voters," one Arizona lawyer wrote. I have practiced law in the United States for 20 years, and to my knowledge, no one has filed a brief with a court reciting the "fact" that has yet to be established by any evidence, judge's order, or Arizona legislator, support that the right-wing fantasy of the "fake electors" being treated worse than George Floyd."

The rules of constructing the rules and the resulting precedents. The "powers" to be "appoint" includes selection and conditioning of their status such that two different sets of credentials are submitted to the Congress. The multiple credentials issue has been decided by the courts, instead resolved by unpopular actions by each chamber that the press decries the actions as contrary to "democratic principles". The choice of representatives and senators is a political question, as the courts have read Article VI, Section 6, Clause 1, the Incompatibility Clause, "as expressly committing a political question to a coordinate branch of the National Government". In addition, past precedent has shown, in the power to judge the qualifications of its members, either house through ordinance of seats and conducting voters, within the support of Constitution.

10. The Impact on Future Elections and Electoral Processes

This paper analyzed the allegations brought against Democrat candidates Mark Kelly and Joe Biden in the Fake Electors case in Arizona, as well as the causes of action that these allegations fit into. To provide a better idea of the context that these allegations were made and the legal standards that are in place for these specific causes of action, the 2020 election and related election litigation was also analyzed. To support the analysis, a collection of Supreme Court cases, as well as federal and local election laws and regulations were used.

The lawsuit filed in the Fake Electors case in Arizona could potentially give rise to quality litigation relevant to electoral reform as a matter of both law and policy. The Fake Electors case in Arizona may have ended quickly; only two months after the deadline for printing ballots for the 2022 general election, the Arizona Supreme Court declined to hear the case and expedited procedural processes as requested by the parties in the trial court. But the election contest lawsuit potential raises a number of potentially important lines of claims, allegations, and evidence that could shape important legal and policy questions about future elections or electoral processes. If any election contest lawsuit has significant long-term consequences, principal among those could be important changes in the law. For example, a couple challenges to the so-called "safe harbor" law make for – together with similar cases out of Texas – are among this cycle's cases that challenge the validity of the Electoral Count Act and could significantly reshape federal electoral law. However, Arizona's early resolution in the Fake Elector's cases means that it is less likely that it will have time to shape 2022 or 2024 elections themselves, as this section explores.

11. Conclusion and Recommendations for Ensuring Election Integrity

11. Conclusion

After analyzing the Fake Electors case in Arizona, its legal merits, and the deficiencies of the Trump campaign's litigation, we can make the following conclusions. Firstly, the 2020 U.S. election on November 3 and December 14 was subject to numerous irregularities giving rise to legal challenges and questions regarding its outcome. While some legal deficiencies did contribute to the Trump campaign's defeat, other claims were entirely without merit and ought to have been dismissed by a firm and competent judiciary. Not least, the Supreme Court of the United States could and should have addressed constitutional questions concerning the election. Secondly, the main legal deficiencies of the Trump campaign lawsuits were due to the suboptimal drafting of the complaints and to incompetence and strategic errors by the legal representation. Politically-charged judges and a generally hostile media and civil society environment exacerbating the difficulties to address electoral irregularities extended the impact of these legal deficiencies. Thirdly, the Fake Electors case reveals multiple irregularities in a chaotic setting. It also draws attention to some of the serious problems with the U.S. election system as well as with the legal rules surrounding elections and the presidency.

To rid themselves of any perception of unfair advantage, those seeking election reforms or other measures to ensure electoral integrity can reasonably focus on rolling back the undermining of the voting system. A return, for instance, to election day voting with proper controls and a subsequent change to the Constitution's electoral college system is a far less managerial an enterprise in both popular and legislative terms. It appears, for instance, that the addition of a secure voter identity mechanism would be approved by roughly fifty million more citizens than when surveyed without the expressed desire to challenge or roll back apparent fraudulent efforts to voucher the quality of ballots. Moreover, now looking and reasoning from proper principles, significant improvements in ensuring election integrity would be possible if judges would simply enforce state constitutional requirements concerning the conduct of elections—as, e.g. the Arizona "binding direction" provision discussed in this Essay. Such a viewpoint privileges a view of election integrity which is directly controlled by the citizens of the polity, with the wishes of the federal representatives (governors and legislatures) being enforceable as a matter of course. At the same time, a focus on state legislatures is not merely surrender to an already badly compromised system and already flawed legislators who were elected under the very same system and in some cases with the very same ballots but accepts of need of all federal election reform proposals the only one acceptable from classical liberal and conservative perspectives, which ought to be, on rootly existential levels, primarily focused on providing security, and specifically, integrity to individual persons in their natural rights.