A mega-hearing was held on Friday in Fulton County, Georgia, during which defense attorneys in the massive racketeering case against Donald Trump and 18 others presented motions intended to dismiss or delay the case. While there are several other issues to be heard, including whether Trump was protected by the First Amendment in making false claims about election fraud, the first half of the day was devoted to a single issue: Can the state prosecute Trump’s slate of false electors?
Fulton County Superior Court Judge Scott McAfee spent the morning dealing with issues that go deep into the Constitution, with attorneys for the false electors arguing that this was “not a matter for a jury to decide"—but then demanding a judicial dismissal of the whole case.
Much of the argument seemed to flip on its head the idea of states’ rights under the 10th Amendment as attorneys for the Republican defendants argued that if there is any dispute, the House can determine which electors are legitimate and the state has nothing to do with it.
Attorneys for the false electors argued that the people brought in to sign a petition claiming to be “true electors” for Trump were not false electors at all, but “contingent electors.” This is a term that these attorneys have been using since first filing some of these motions in September, but which doesn’t exist in either the Constitution or law.
At the core of the argument made by the false electors’ attorneys is the claim that Georgia failed to meet its “safe harbor” date of Dec. 8, 2020, even though Gov. Brian Kemp certified the results of the election on Nov. 23. The reason for this claim is that Trump filed a suit on Dec. 3, less than a week before the safe harbor date, which had still not been settled by Dec. 8.
According to the defense attorneys, once Georgia lost its safe harbor protections, it had no standing in who was selected as an elector. Following that date, according to the presentation, only the U.S. House had any power to determine who was or was not an elector.
Even though he made it clear at the outset that he did not expect to make any rulings from the bench, McAfee seemed to be listening attentively to the arguments and told the electors’ attorneys that they were "doing a good job of explaining” how the Constitutional issues surrounding this issue worked.
Attorney Holly Pierson even argued that the Trump electors were required to sign the petition saying they were genuine electors, or they could have faced prosecution by the state for not fulfilling their required duties as electors. According to Pierson, Georgia had lost its rights to say anything about the electors when it failed to meet the Dec. 6 deadline, making the electors for Trump just as legitimate as the electors for President Joe Biden. Throughout her presentation, Pierson referred to them as the “Democrat electors” and “Republican electors,” and insisted that only Congress could determine which were legitimate.
Two sets of attorneys for the false electors circled this issue from different routes, but both came down to the idea that if there were any dispute over legitimacy on Dec. 6, the state lost its authority and had no power to determine whether any slate of electors was valid.
Even though Trump’s legal team’s general argument during the election was that state legislatures had complete authority to select electors in any way—which is why John Eastman and others spoke with Georgia legislators and attempted to get them to convene a special session to appoint new electors—attorneys for the false electors argued that anything done by the governor or legislature at that point didn’t matter.
Throughout the morning, the attorneys tried to whittle down Georgia’s right to administer federal elections or deal with electors, reducing it to a position that if there was any objection after Dec. 6, Georgia could not deal with it.
In response, attorneys for the state argued that the false electors were not protected by any federal guidelines because they were never actually electors in the first place. Judge McAfee questioned the state using several hypothetical situations, including asking whether Georgia could prosecute electors if they were recognized by the House, state attorneys seemed puzzled because none of the situations McAfee raised applied to this case.
State attorneys brought up the elephant in the room (more a giant sauropod) by going back to the explicit language of the 10th Amendment that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.” However, Pierson argued that electors were federal officers not subject to state law. In her final statements, Pierson declared that the state doesn't get to decide who the real electors are and once again claimed only the House can determine who is real after the safe harbor date.
Following this presentation, McAfee did make one decision from the bench: He ruled to give the attorneys for the false electors another 15 days to file additional arguments. No ruling on this motion is expected before the end of the year.
There has been a ton of coverage in recent weeks over a streak of poor 2024 polling for Democrats and Target Smart’s Tom Bonier joins us to help us separate the wheat from the chaff. We talk about what to take from these polls and how to balance them against the much more positive election results we’ve seen this year. We also discuss how early voting data continues to evolve and how Sen. Sherrod Brown’s campaign will use Ohio’s recent abortion and marijuana referendums to find new persuadable voters next year.