The effort to overturn the 2020 election by organizing slates of alternate electors for President Donald Trump began in the swing state of Wisconsin. Now, the fitful attempt to hold those organizers accountable might hang on what happens there.
On Monday, three people charged in what became known as the “fake electors” plan are in court for a pretrial hearing in a case that is one of a vanishing few still moving forward.
Trump electors were central to the campaign’s attempt on Jan. 6, 2021, to prevent Joe Biden from being certified as winner of the 2020 election. Mr. Trump’s lawyers sought to strong-arm Vice President Mike Pence into delaying the vote tally by Congress on the grounds that several states, including Wisconsin, had submitted “dual slates” of electors.
Why We Wrote This
Criminal cases against those accused of planning a “fake elector” scheme to keep President Donald Trump in office after his 2020 election loss have mostly run aground. In Wisconsin, a case involving three key figures in the effort might be headed for trial.
Those electors represent each state’s actual votes for president. If Mr. Pence, presiding over the vote tally in Congress, had agreed to Mr. Trump’s demand to count the alternate slates or to let Congress decide the winner, Mr. Trump could have remained in office despite Mr. Biden receiving more votes. After Mr. Pence refused, a crowd of Trump supporters stormed the U.S. Capitol.
Nearly five years on, no campaign officials or advisers have been tried for organizing the fake electors in seven battleground states. A court in Georgia recently ended a criminal case in which Mr. Trump and 18 other defendants had been indicted in August 2023 for racketeering and other offenses. In September, a judge in Michigan dismissed a case against 15 Republicans charged with fraud for certifying Mr. Trump as the 2020 winner. Criminal prosecutions in other states have stalled or faced setbacks.
That makes Wisconsin a potential test case for accountability for what was considered a national crisis of democratic legitimacy, which continues to cast a shadow over how America’s elections are run.
Last year, Wisconsin charged three Trump allies over the fake-electors scheme. Two, James Troupis and Kenneth Chesebro, were attorneys for the Trump campaign; the third, Michael Roman, was Trump’s national director of Election Day operations. They each face 11 counts of alleged forgery, each carrying prison terms.
The three were among 77 people pardoned last month by Mr. Trump for all conduct relating to the scheme and “their efforts to expose voting fraud and vulnerabilities in the 2020 Presidential Election.” That pardon – largely symbolic because none face federal charges – doesn’t apply, however, to state courts. (Mr. Trump also has pardoned or commuted the sentences of more than 1,500 people charged in connection with the Jan. 6 attack.)
None of the 10 fake electors, who met secretly in Wisconsin’s statehouse on Dec. 14, 2020, as the state’s legitimate electors were casting their votes for Mr. Biden, has been charged. Instead, Wisconsin prosecutors are focusing on the people who developed the fake-elector strategy.
“It was these lawyers in Wisconsin who cooked up the whole scheme and exported it to the rest of the country,” says Jeff Mandell, the co-founder of Law Forward, a left-leaning law firm in Madison, Wisconsin.
In 2023, Wisconsin’s fake electors settled a civil lawsuit brought by Law Forward, admitting to their role in the scheme. Mr. Troupis, a retired judge who was Mr. Trump’s attorney in Wisconsin, and Mr. Chesebro, a New York attorney who has since been disbarred, were both part of the settlement. It included the release of emails, texts, and memos that detail how Mr. Chesebro’s legal theory of alternate electors was enthusiastically adopted by Mr. Troupis and shared with the Trump campaign. Mr. Chesebro then provided templates for other states to prepare slates of electors for Mr. Trump.
“They knew what they were doing, and now they’re trying to escape the consequences,” says Mr. Mandell, referring to defense motions to dismiss the case.
Joseph Bugni, a lawyer for Mr. Troupis, declined to comment on the felony charges. Lawyers for Mr. Chesebro and Mr. Roman didn’t respond to emailed requests for comment.
Mr. Troupis criticized Wisconsin’s Attorney General Josh Kaul after his indictment, telling reporters at the courthouse that “this is a political case. This has nothing to do with the law.” He accused Mr. Kaul, a Democrat first elected in 2019, of hurting the cause of justice.
Last month, he told Steve Bannon’s “The War Room” show that Democrats wanted to put him on trial so that they could revive “the Jack Smith case,” referring to the federal indictment of Mr. Trump for attempting to overturn the 2020 results, which was abandoned after the 2024 election. “They’re going to try the Jack Smith case in Dane County, Wisconsin, next summer on live television,” he said.
Scheme was “a fantasy” in Wisconsin
Mr. Troupis and others involved in the scheme have argued that Democrats did the same in 1960, when there was uncertainty about Hawaii’s presidential electors. Of the two slates of electors submitted to Congress, the votes ultimately went to John F. Kennedy.
But this analogy doesn’t hold water, says Michael Rosin, an independent legal scholar who has studied the 1960 election. Hawaii was holding a recount at the time, whereas Wisconsin had already held a recount that affirmed Mr. Biden’s narrow victory. The electors in Hawaii met openly in the same room with the state’s governor, who certified both sets of paperwork.
“In 1960, it was very important to the new state of Hawaii to do everything right,” he says.
The Republican electors in Wisconsin could have inserted legal language that made their votes conditional on the election result being reviewed by the Supreme Court, he says. But their slate would still not have been certified as alternate electors, as Hawaii’s was in 1960.
“This was just a fantasy on the part of Chesebro that they could change the path in Wisconsin and elsewhere,” Mr. Rosin says.
Mr. Chesebro was also among those indicted in Georgia’s election-interference case. He pleaded guilty in October 2023 to a single charge and agreed to cooperate with prosecutors. By then, Fulton County District Attorney Fani Willis had become a national political figure who seemed poised to bring Mr. Trump to trial. Mr. Chesebro’s inside knowledge of the fake-electors scheme, also pursued in Georgia, made him an important potential witness.
But Ms. Willis suffered a spectacular fall a few months later after it was revealed that she had hired a special prosecutor for the case with whom she was romantically involved. She was removed from the case last December. A judge ended the case last month after Ms. Willis’s replacement said it wasn’t feasible to proceed, as Mr. Trump’s presidential term would delay any trial for several years, depriving defendants of their right to a speedy trial.
“The legal question is really secondary to the practical questions,” says Anthony Michael Kreis, an associate professor of law at Georgia State University who has followed the case.
Mr. Trump’s criminal indictment in Georgia, where he had urged the state’s top election official in 2020 to “find” sufficient votes to flip the outcome, became fuel for his political comeback in 2024. Supporters rallied to defend him against what he called “lawfare” by Democratic prosecutors, and his campaign swept aside opponents in the Republican primary. His campaign sold branded items featuring Mr. Trump’s booking mugshot from Fulton County.
“A moment of potential reconciliation”
That the Georgia case has collapsed is regrettable, and not simply because justice had not run its course, says Professor Kreis. He says a trial would have served another purpose: setting the record straight about an election that Mr. Trump still falsely claims he won.
“It was fundamentally, in my view, a moment of potential reconciliation where people could see through evidence for their own selves that there was a group of people who were lying to the American public in order to keep themselves in power,” he says.
In 2022, Congress amended the Electoral Count Act to clarify the Vice President’s ceremonial role in the certification of votes in Congress.
After the presidential election in 2028, Vice President JD Vance, who is expected to seek the GOP nomination, would preside over that process. Mr. Vance said last year that had he been in Mr. Pence’s position, he would not have certified the 2020 election results and that states should have submitted “multiple slates” that Congress should “have fought over.”
Mr. Mandell says he doesn’t expect a future presidential candidate to try another fake-electors scheme. But he argues that it’s still important to hold the Wisconsin masterminds of 2020 to account after Mr. Trump issued preemptive federal pardons.
“If the message is, ‘no harm no foul’ … we create the incentives for something more extreme next time,” he says.
