WASHINGTON – At the heart of Donald Trump’s two 2020 election interference indictments was his alleged strategy to replace legitimate electors in seven key battleground states with fake ones who met on a certain date to cast fraudulent votes for the former president.
But some conservatives argue that Democrats deployed a similar tactic in Hawaii during the 1960 election between then Vice President Richard Nixon and Democratic challenger John F. Kennedy – a comparison that holds no water.
Though Kennedy beat Nixon in the 1960 election, Hawaii’s results remained largely uncertain since the initial count found that Nixon beat Kennedy in the state by less than 150 votes – a narrow margin that was originally certified by the Hawaii’s Republican lieutenant governor.
A lawsuit was soon filed and a court ordered a recount of votes in the state, which was still taking place on Dec. 19, 1960 – the date set for electors to meet and cast their ballots. On that day, Republican electors sent a certificate to Congress with their three votes for Nixon.
But at the same time, Democrat electors cast their three votes for Kennedy and sent their own documents to Congress. The recount found that Kennedy won Hawaii by 115 votes and a court ordered his win to be certified, according to Joan Meyer, a partner at the law firm Thompson Hine.
But the 1960 case and what happened in the aftermath of 2020 are noticeably different.
“In Trump’s case there were no genuine grounds for uncertainty about the outcome of the election, no ongoing recount, and Trump’s slates of fake electors were assembled with the intent to sow confusion, buffalo Congress and the Vice President, and stop them from certifying the genuine election results,” said David Alan Sklansky, a law professor at Stanford University.
Here’s a closer look at the two cases.
What are legal experts saying about the two cases?
The differences in both cases can be viewed in several ways, including the timing of the recount, the nature of the electors’ meetings and the vice presidents’ approval.
Unlike any of the contested states in 2020, the 1960 outcome in Hawaii was genuinely in doubt since the margin of victory was within 100 to 200 votes, according to George Mason University law professor Ilya Somin. It was reasonable for both sides to have electors prepared since it was unclear who the “real” electors were, he said.
“The 1960 Hawaii dispute had no chance of overturning the overall election result and was not part of a general scheme to rig or steal the election,” Somin said.
By contrast, the margin in all the disputed states in 2020 were vastly larger, and there was no real chance of those results being overturned, Somin said. Trump allegedly continued his fake elector schemes on false claims that the 2020 election was rigged – which the indictments claim he knowingly spread and officials insisted there was no evidence of.
In Georgia where Biden had won by nearly 12,000 votes, for instance, Trump’s electors still allegedly met even after Georgia Secretary of State Brad Raffensperger said that legally cast ballots were counted three times and votes remain unchanged.
“Trump challenged the Georgia results and failed to get any traction,” Meyer said. “In Hawaii in 1960, a court was overseeing the recount process which resulted in the reversal of the win from Nixon to Kennedy.”
In Hawaii, the two slates of electors met openly and transparently, Meyer said. But Trump and his allies in 2020 allegedly selected a Republican slate secretly in Georgia who met in secret, voted secretly and were told not to mention what they were doing or talk to the media.
“This surreptitious behavior indicates that this was not an honest disagreement or a back up plan to keep options open, it was a plot to substitute legitimate electors with fake ones,” Meyer said.
She added that the certificates that the electors sent to Congress in 1960 were “intended to be a backstop utilized after a court ordered recount declaring the real victor of the presidential election,” unlike the certificates allegedly signed in 2020 by the fake electors.
After the recount, the Republican Governor of Hawaii at the time, William Quinn, sent a new certificate to Congress dated Jan. 4, 1961, certifying that the Democratic electors – who had previously cast their votes for Kennedy unofficially – were elected. Nixon, who presided over the congressional session to count the electoral votes on Jan. 6 of that year, accepted the governor’s certificate “without the intent of establishing a precedent.”
“It is hard to convince a jury that there was fraudulent intent by the Democrat electors when it turned out that Kennedy had won and they substituted a correct certificate approved by the Governor of Hawaii,” said Marc Scholl, a former prosecutor in New York now counsel to the firm Lewis Baach Kaufmann & Middlemiss.
In contrast, Trump and his allies allegedly tried to pressure former Vice President Mike Pence to use Trump’s fake electors and reject the legitimate electoral votes, and Pence had refused.
Fani Willis pushes back against claims that 1960 case is a legal precedent
Along with Trump, Georgia’s Fulton District Attorney Fani Willis also indicted 18 of his allies – from prominent figures like Rudy Giuliani to lesser known individuals – last month for their alleged efforts to subvert the 2020 election in the state.
Cathleen Latham and David Shafer, both of whom were fake electors, requested in court filings last month that their cases be moved from state court to federal court and cited the 1960 Hawaii case as a “legal precedent.”
However, Willis denied Latham’s motion in a court filing on Thursday, arguing that claims the Hawaii case is precedent “misses the mark by a wide margin.”
“Actions that did not result in prosecution 60 years ago – in a different jurisdiction with different election code and criminal statutes, presided over by different prosecuting agencies, and with differing substantive evidence of criminal intent – provides zero protection” for Latham, Willis wrote.
Willis also argued that when Latham allegedly met with other fake electors, two recounts had already been completed and both reaffirmed Biden’s victory, and that her losing effort was never certified by the governor or validated through any other means.
“There is no guiding precedent to be found here,” Willis wrote.
This article originally appeared on USA TODAY: How Trump and his allies’ fake electors bid compares to a 1960 case