The Washington PostDemocracy Dies in Darkness

As electoral college formalizes Biden’s win, Trump backers hold their own vote

A protester in support of President Trump holds a flag outside the state Capitol Phoenix on Monday. The protest occurred at the same time as Arizona’s presidential electors met to cast their ballots for president and vice president. (Courtney Pedroza for The Washington Post)

ATLANTA — Republicans in six states won by President-elect Joe Biden held their own electoral college-style votes Monday for President Trump — hoping that future court decisions would throw out Biden's votes and count the GOP ones instead.

These votes have no legal meaning, according to election law experts. The law only recognizes votes from electors chosen according to state law — which, in every one of these states, is the Democratic electors.

But many Republicans who had been chosen to cast electoral votes for Trump still gathered to cast them. They said they were employing a tactic used by Democrats in Hawaii in an election 60 years ago — casting votes that don’t count, in the hopes that a later court decision would give them force.

This year, that seems very unlikely to work.

Trump has already spent weeks trying to overturn Biden’s victory in the courts, and has failed: The president and his allies have been rejected by at least 86 judges, including at the U.S. Supreme Court.

‘The last wall’: How dozens of judges across the political spectrum rejected Trump’s efforts to overturn the election

But — in another sign that Trump has pulled the GOP establishment into his baseless, unprecedented effort to subvert Biden’s victory — many Republicans met anyway, to cast votes by the electoral college’s legal deadline of Dec. 14.

“We took this procedural vote to preserve any legal claims that may be presented going forward,” said Bernie Comfort, Trump’s Pennsylvania campaign chairman, in a statement put out by the Pennsylvania GOP. “This was in no way an effort to usurp or contest the will of Pennsylvania voters.”

In Nevada, six Republicans met in the capital, Carson City, to cast their faux vote before an audience of 15.

“There’s still legal action pending in all these states, so what we’re doing here is complying with the requirement to vote on this day, in the state capital in the event court cases are resolved favorably,” said Jim DeGraffenreid, who was set to be one of Trump’s electors before Biden won the state.

“You could say this is our howdy-doody to the system,” said Shawn Meehan, another Republican who took part.

These GOP votes did not have the backing of any governor or state legislature. Despite pleas and pressure from Trump, Republican-controlled legislatures in several of the six states had not tried to intervene and stop Biden’s win. On Monday, Michigan Senate Majority Leader Mike Shirkey said that would have undermined democracy.

“Michigan’s Democratic slate of electors should be able to proceed with their duty, free from threats of violence and intimidation. President-elect Biden and Vice President-elect Harris won Michigan’s presidential election. It is our responsibility as leaders to follow the law and move forward in pursuit of policies that contribute to the betterment of Michigan,” Shirkey said.

Still, more than a dozen Republican legislators came to the state Capitol in Lansing on Monday in an apparent attempt to submit their own electoral votes. But the capitol was closed, because of covid-19 precautions and unspecified security concerns. The state police would not let them in.

“We’re electors,” the Republicans said.

“The electors are already here,” a state police officer said. “They’ve been checked in.”

And in Georgia, where the Republican governor has backed the election results and the Republican secretary of state has been an outspoken critic of Trump’s challenges, 16 Trump-backers held a vote in a side room at the state Capitol building, as Democratic electors cast their formal votes for Biden in the Senate chamber.

Ga. secretary of state says fellow Republicans are pressuring him to find ways to exclude ballots

“The president has filed a contest to the certified returns, that process is pending, it has not been decided or deferred by any judge,” said Georgia GOP Chairman David Shafer. “In order to preserve his rights it’s important that the Republican nominees for presidential electors meet here today and cast their votes.”

Shafer said that the case they were focused on was filed in early December in Fulton County, home of Atlanta. Trump’s campaign has alleged there was widespread election fraud in Georgia, though Biden’s win was confirmed by two separate recounts.

In Wisconsin, it was unclear what, exactly, Republicans had voted on. The vote happened in secret, and the state Republican Party issued only a short statement saying that electors had met “to preserve our role in the electoral process still pending in the courts.”

In several states, Republicans said they were modeling their behavior after tactics used by Democrats in Hawaii in the 1960 presidential election.

On the day that the electoral college voted that year, Republican Richard M. Nixon was ahead — but Democratic electors, believing that John F. Kennedy had carried the state, held their own vote for Kennedy. Later, after a recount, the courts and the governor declared that Kennedy had won. So Hawaii officially sent two sets of electors.

When Congress met to count the votes, Kennedy was ahead by a wide margin. With little debate, they counted Hawaii for the Democrat.

This year, Congress will formally open and count the electoral votes on Jan. 6. Some Republicans have hoped to somehow overturn Biden’s win at that stage, by asking Congress to disregard states’ official electors and replace them with Trump votes.

That is extremely unlikely, given that it would require the consent of the Democrat-led House.

And even if Republicans tried, election law experts said that Monday’s faux-votes would not give them a legal basis.

That’s because the law requires Congress only to count electors chosen in accordance with state law. And, unless a court steps in, these votes were not.

“The only source of authority to be an elector is from state law,” said Edward Foley, a professor of constitutional law at Ohio State University. If these GOP votes do not get approval from a state or a judge, Foley said “you and I and 10 of our friends could send in electoral votes for our favorite sports figure or movie star and it would have the same legal status.”

Masterson reported from Carson City, Nev. Duda reported from Phoenix. Philip Bump, Tom Hamburger, Dan Simmons, Omar Sofradzija, Emma Brown and Michelle Ye Hee Lee contributed to this report.