Why the Michigan False Electors Case Matters

Michigan's Attorney General charges the state's alleged false electors with forgery and related crimes

President Joe Biden won 50.6% (2,804,040 votes) in the 2020 presidential election in Michigan to Donald Trump’s 47.8% (2,649,852 votes) which gave Biden the state’s 16 electoral votes, a result that was certified by state authorities on November 23, 2020. Even so, 16 Republicans, calling themselves electors, met on December 14, 2020 in the basement of the Republican party headquarters in Lansing and signed a certificate stating that Trump had won Michigan’s electoral votes.

In the multi-ring circus of legal proceeding related to the 2020 presidential election, the July 18 filing of criminal charges by Michigan Attorney General Dana Nessel against participants in the alleged false electors scheme may be very significant.  

The case is notable for what the prosecutors decided to charge (and not charge), for the type of evidence that will be required to secure convictions, and for how potential convictions in the Michigan case may affect the additional potential criminal charges against former President Donald Trump and those close to him.

Michigan Attorney General Dana Nessel

Who and What Was Charged

Each of the 16 defendants has been charged in state court with eight felonies with the following maximum jail terms:

•  One count of Conspiracy to Commit Forgery, a 14-year felony.

•  Two counts of Forgery, a 14-year felony.

•  One count of Conspiracy to Commit Uttering and Publishing, a 14-year felony.

•  One count of Uttering and Publishing, a 14-year felony.

•  One count of Conspiracy to Commit Election Law Forgery, a 5-year felony.

•  Two counts of Election Law Forgery, a 5-year felony.

The Michigan felony complaints, in contrast to the lengthy and fact-intensive “speaking” indictments of former President Donald Trump in New York for falsifying business records and in Florida for mishandling classified documents, are a startlingly short two pages for each defendant.  The 16 complaints essentially recite the operative language of the statutes that each defendant is alleged to have violated. The complaints can be seen 

The Alleged Crimes: Forgery, Uttering and Publishing, and Election Law-Forgery    

The 16 defendants are not alleged to have engaged in a conspiracy to subvert the Michigan results of the 2020 presidential election.  Instead of charging the persons who devised the false electors scheme, Attorney General Nessel elected to charge, at least initially, the people who carried it out.

Forgery. The common meaning of the crime of forgery involves a deception, for example, signing of someone else’s name to a check.  In this situation, the defendants signed their own names to a document or documents, but the crucial distinction is what those documents were.  A Michigan statute, MCL 750.248, makes it a felony to, in the words of the complaint, “falsely make, alter, forge or counterfeit a public record.[1]”  The public record that was falsified or forged was the Certificate of Votes of the 2020 Electors from Michigan.

Uttering and Publishing. The 16 defendants are also charged with the crime of “uttering and publishing” which is essentially the same as passing a forged check.  The complaint alleges that they “did utter and publish as true, a certain false, forged, altered or counterfeit record, instrument or other writing, with intent to injure or defraud, knowing said instrument to be false, altered, forged or counterfeit.[2]”

Election Law-Forgery.  The 16 defendants are also alleged to have violated the forgery provisions of the Michigan Election Law:

Except as otherwise provided in this act, a person who does either of the following for any purpose under this act is guilty of forgery:

(a) Knowingly makes, files, or otherwise publishes a false document with the intent to defraud.

(b) Knowingly makes, files, or otherwise publishes a document that contains false signatures with the intent to defraud.

The Evidence Required to Secure Convictions for Forgery and Related Crimes

The decision by Attorney General Nessel to charge forgery, uttering and publishing, and conspiracy as to each means that the evidence required to obtain convictions will be more narrowly focused than what would be required to obtain convictions in an expansive conspiracy case.  Framing the charges this way, instead of as a broad criminal conspiracy, has important consequences.  In particular, the prosecutors have created a case in which documents, particularly the Certificate of Votes of the 2020 Electors signed by the alleged false electors, help to tell the story.

The prosecutors may also argue that a person without authority who seeks to execute an official state function—that of an elector in a presidential election—simply by self-identifying as such or attending a meeting in which people agreed to call themselves electors—shows criminal intent.  Thus, the prosecutors will argue, the defendants had to know that they did not have the authority to sign the Certificate of Votes of the 2020 Electors and that they were falsifying a public document.

Here are the certificates signed by the alleged false electors and the actual certificate of Michigan’s electors.

A primary defense of the alleged false electors may be, “I did not understand what I signed,” or some variation of it.  On July 18 The Detroit News reported:

Another of the 16 electors, Michele Lundgren, said she was distraught over the charges and she questioned what evidence prosecutors had.

The 73-year-old Detroiter said she had simply received a call on Dec. 13, 2020, to be in Lansing the following day. While there, Lundgren said she signed what she thought was a sign-in sheet.

“We signed a blank piece of paper," Lundgren said. "And that’s all [I] can tell you."

The 16 false elector defendants’ average age is almost 69. Their common characteristic is participation in local or state-level Republican politics:

• Meshawn Maddock, 55, was a co-chair of the Michigan Republican party and is married to a Republican member of the Michigan House of Representatives.

• Kathy Berden, 70, is one of the Republican National Committee members representing Michigan.

• Martha Sheridan, 69, is vice chairwoman of the Michigan Republican Party.

• Kent Vanderwood, 69, is the current mayor of Wyoming, Michigan which is near Grand Rapids.

• Stanley Grot, 71, is the clerk of Shelby Township in a Detroit suburb.

• Amy Facchinello, 55, is a member of the school board in Grand Blanc, a suburb of Flint.

• Michele Lundgren, 73, was the Republican nominee in 2022 for a seat in the Michigan House of Representatives.

• Clifford Frost, 75, is a realtor who ran unsuccessfully for the Macomb County Board of Commissioners.

• John Haggard, 82, was one of the plaintiffs in a lawsuit that tried to overturn the 2020 election results in Michigan. The lawsuit was dismissed and the lawyers who brought it were sanctioned.

• Timothy King, 56, was another plaintiff in the lawsuit that tried to overturn the 2020 election results in Michigan.

• Rosa Rook, 81, is a member of the executive committee of the Van Buren County Republicans.

• Marya Rodriguez, 74, is a lawyer who is facing potential disciplinary proceedings before the Attorney Discipline Board according to the Detroit Free Press.

The evidence known thus far suggests that the false electors knew what they were doing was wrong when they met on December 14, 2020 and decided to identify themselves as presidential and vice presidential electors. Michigan law requires presidential and vice-presidential electors to be chosen well before election day. The process of selecting electors involves certifications by the political parties to the secretary of state after their fall conventions. [4]

Moreover, the alleged false electors signed a certificate stating that they “convened and organized in the State Capitol”—a requirement of Michigan law [3]—when, in fact, they met in the basement of the Republican headquarters in Lansing. And, at the time the fake electors met to create the false certificate they knew, or should have known, that state officials had certified Joe Biden as the winner in Michigan in November.

Where Things Might Go From Here

The false electors scheme was not limited to Michigan.  On July 19, Newsweek published lists of the names of the alleged false electors in Arizona (14), Georgia (16), Wisconsin (10), New Mexico (5), Nevada (6), Pennsylvania (19) and Michigan (16.)  The lists can be seen

Whether the Michigan case provides a template for prosecutions in other states, and whether federal authorities will prosecute alleged false electors, remains to be seen.  Even so, Attorney General Nessel’s decision to charge the alleged false electors with forgery and related crimes could have profound consequences for other legal proceedings involving former President Trump.

David O’Brien, a Washington trial attorney with experience as a prosecutor, said that the key elements in proving the crime of conspiracy involve an agreement and the proof of an overt act in furtherance of the conspiracy.  Criminal conspiracy cases can be messy and difficult to prove which is why prosecutors often seek to “turn” low level conspirators to strengthen the case against a conspiracy’s leaders.

To take a familiar example, when then-President Trump told Georgia Secretary of State Brad Raffensperger in an extensively reported phone call, “I just want to find 11,780 votes, which is one more than we have,” was he acting overtly to further a conspiracy or expressing a personal wish?  The statement is inconclusive.

The target letter issued by Special Counsel Jack Smith to Trump on July 19 referred to three federal statutes: deprivation of rights under color of law, conspiracy to defraud the U.S. and tampering with a witness. The target letter suggests that an additional Trump prosecution is imminent.

If the Michigan case, or cases in other states, result in felony convictions of the false electors, federal prosecutors may have an additional, and very clear argument in the conspiracy case against former President Trump. The prosecution will be able to point to Trump, and the Trump campaign’s, encouragement of the false electors schemes which resulted in felony convictions as “overt acts” in furtherance of an illegal conspiracy.

Can former President Trump be tied to the false electors scheme in a conspiracy to commit forgery under state law or in a conspiracy to commit other crimes aimed at overthrowing the 2020 election? These are open questions, but here is what The New York Times reported on July 27, 2022:

In a lawsuit that Mr. Eastman filed hoping to keep scores of documents from reaching the House committee investigating Jan. 6, court filings established that he and Mr. Trump had worked together on several efforts to undo the election results, including the fake electors plan.

The Times also reported:

Rusty Bowers, the Republican speaker of the Arizona House of Representatives, told the committee that he refused Mr. Trump’s directive to create a false slate of pro-Trump electors. “You are asking me to do something against my oath, and I will not break my oath,” he testified saying to Mr. Trump.

A Potential Civics Lesson

The Michigan case against the alleged false electors may also be a teachable moment about how the Electoral College works, and particularly how presidential electors are appointed and scope of their authority. The Michigan case should enforce the reality that presidential electors are not designated as such through self-identification.

Your comments are welcome.

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[1] ) MCL 740.248  provides, “A person who falsely makes, alters, forges, or counterfeits a public record, or a certificate, return, or attestation of a clerk of a court, register of deeds, notary public, township clerk, or any other public officer, in relation to a matter in which the certificate, return, or attestation may be received as legal proof, or a charter, will, testament, bond, writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or an order, acquittance of discharge for money or other property, or a waiver, release, claim or demand, or an acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or an accountable receipt for money, goods, or other property with intent to injure or defraud another person is guilty of a felony punishable by imprisonment for not more than 14 years.”

[2] MCL 750.249 provides, “A person who utters and publishes as true a false, forged, altered, or counterfeit record, instrument, or other writing listed in section 248 knowing it to be false, altered, forged, or counterfeit with intent to injure or defraud is guilty of a felony punishable by imprisonment for not more than 14 years.”

[3] MCL 168.47 provides, “The electors of president and vice-president shall convene in the senate chamber of the capitol of the state at 2 p.m., eastern standard time, on the first Monday after the second Wednesday following their election.”

[4] MCL 168. 42 provides, “In the year in which presidential electors are to be elected under section 43, each political party in this state shall choose at its fall state convention a number of candidates for electors of president and vice-president of the United States equal to the number of senators and representatives in congress that this state is entitled to elect. The chairperson and the secretary of the state central committee of each political party shall, within 1 business day after the conclusion of the state convention, forward by registered or certified mail a certificate containing the names of the candidates for electors to the secretary of state. The candidates for electors of president and vice-president who shall be considered elected are those whose names have been certified to the secretary of state by that political party receiving the greatest number of votes for those offices at the next November election.”