On this episode of Utterly Moderate we are joined by editor-at-large of the Bulwark Bill Kristol and University of Baltimore law professor Kimberly Wehle. Both Kristol and Wehle help host Lawrence Eppard sort through a bizarre story about elector fraud in the 2020 presidential election as well as how to fix the Electoral Count Act.

Most Americans are probably aware that we use the Electoral College to elect presidents. When this happens, state government officials sign “certificates of ascertainment” which verify the state’s electors and who they voted for in the election. These are sent with documentation signed by the electors themselves to the National Archives who process them and then send them to Congress to count on January 6th.

According to documents obtained by an organization called American Oversight and covered by Politico, CNN, the Bulwark, and others, in the weeks after the 2020 election, Trump supporters sent fake election certificates to the National Archives declaring that Trump won five states that he actually lost: Georgia, Arizona, Michigan, Wisconsin, and Nevada. Some of the people involved were top GOP officials in the states in question.

The Bulwark has covered this extensively:

• On January 15th Bill Kristol commented, “The forged electoral certificates show coordination across. . . states. Those fake certificates were key to the plan of the Eastman memo and to the Jeffrey Clark DOJ draft letter to Georgia.”
• On January 16th Charlie Sykes wrote, “Some perspective: If an average voter lied on their registration forms or forged an absentee ballot, they would face criminal charges and a world of legal hurt. But this case is far worse because the forged electoral certificates were coordinated, and part of a larger conspiracy to overturn the presidential election.”
• On January 17th Philip Rotner argued that, “These phony certifications were not isolated, one-off events. They were highly coordinated. A single glance at the five phony certificates shows that they are nearly identical in format and text, right down to the fonts. The strong implication: Somebody somewhere was running this show.”

One of the biggest problems with all of this has to do with the Electoral Count Act. A lot of political commentary right now is focused on voting rights, and for good reason. But the biggest immediate threat to our democracy seems to be loopholes in the Electoral Count Act.

As Philip Rotner notes, “Nothing in either of the voting rights bills currently pending before Congress would inhibit partisan state officials, acting under color of law, from attempting to overturn popular elections in their states.” Our guest today, Kimberly Wehle, noted last October that, “There are massive holes in the Electoral Count Act. It is stunning that there is nothing requiring states to count the popular vote. Arizona is proposing legislation to ignore the popular vote and allow the state legislature to pick the electors. That is not democracy. If this is not addressed, state legislatures and/or Congress can steal the next election. The future of our republic is at stake.” Writing in the Bulwark on January 17th Chris Truax noted that, “Congress is free to reject any state’s electoral votes for any reason at all. All that is required is the votes in Congress and the political will to act.”

Segment One: Bill Kristol

• Bill Kristol taught politics at the University of Pennsylvania and Harvard University before going on to serve as chief of staff to Education Secretary William Bennett in the Reagan Administration and as chief of staff to Vice President Dan Quayle in the George H. W. Bush administration. He would then go on to help found the well-known conservative political magazine the Weekly Standard. Today he is editor-at-large of the Bulwark and a regular guest on leading political commentary shows.

Segment Two: Kimberly Wehle

• Kimberly Wehle is a law professor at the University of Baltimore and has written extensively about the issues that we discuss in this episode. Check out her academic work here and some of her pieces for a general audience here.

Articles Referenced in this Episode:

• “American Oversight Obtains Seven Phony Certificates of Pro-Trump Electors,” American Oversight, March 2, 2021.
• “ 6 Panel Ramps Up Investigation into Trump's State-Level Pressure,” Nicholas Wu, Politico, January 10, 2022.
• “Trump Allies’ Fake Electoral College Certificates Offer Fresh Insights about Plot to Overturn Biden's Victory,” Zachary Cohen and Marshall Cohen, CNN, January 12, 2022.
• “Trump's Electoral Forgery/Fraud,” Charlie Sykes, the Bulwark, January 16, 2022.
• “It’s Long Past Time to Prosecute Phony GOP Electors,” Philip Rotner, the Bulwark, January 17, 2022.
• “The Electoral Count Act Is a Zero-Day Exploit Waiting to Happen,” Chris Truax, the Bulwark, January 17, 2022.
• “Here’s How We Fix the Electoral Count Act”, Chris Truax, the Bulwark, January 19, 2022.
• "As Giuliani Coordinated Plan for Trump Electoral Votes in States Biden Won, Some Electors Balked," Reinhard et. al., Washington Post, January 20, 2022. 

Episode Music/Audio Clips:

• “Please Listen Carefully” by Jahzzar (creative commons)
• “Draw the Sky” by Paul Keane (licensed through TakeTones)
• “Druckstellen” by Ibi (creative commons)
• “Reading by Lamplight” by Maarten Schellekens (creative commons)
• Bruce Springsteen Super Bowl Jeep Commercial (publicly available on YouTube)
• “Happy Trails (To You)” by the Riders in the Sky (used with artist’s permission)