Wisconsin AG's Flip-Flop on 2020 Alternate Electors: From Legal to Criminal Prosecution
Alternate electors have historical roots in contested elections, serving as contingency slates to ensure orderly certification if courts resolve disputes.
Wisconsin Attorney General Josh Kaul's office issued a detailed legal analysis in February 2022 concluding that the Republican alternate electors' actions in the 2020 presidential election were not illegal, yet the state pursued felony charges against three Trump campaign associates in December 2024, prompting accusations of prosecutorial inconsistency. The shift, highlighted in a November 13, 2025, motion to dismiss by lawyers for attorneys Kenneth Chesebro and Jim Troupis and Trump aide Michael Roman, argues that Kaul contradicted his own department's prior findings, undermining the case's validity.
The 2022 memo, obtained through public records requests, examined a complaint from left-wing group Law Forward alleging the 10 Republican electors violated state law by meeting on December 14, 2020, and casting votes for President Trump despite Joe Biden's certified victory. It stated: "Wisconsin law does not prohibit an alternate set of electors from meeting" and "based upon the text of the relevant statutes, and in light of the facts, historical precedent, and related federal authorities, this memorandum concludes that the Complaint does not raise a reasonable suspicion that Respondents violated Wisconsin election law." The document emphasized the electors' intent to preserve legal options amid ongoing litigation, including Trump's failed challenge to absentee ballots upheld by the Wisconsin Supreme Court on December 14 by a 4-3 vote.
Alternate electors have historical roots in contested elections, serving as contingency slates to ensure orderly certification if courts resolve disputes. In the 1960 Hawaii race, Democrats submitted an uncertified slate for John F. Kennedy pending a recount, which Congress considered but ultimately rejected; Nixon conceded without challenge. Similar provisions appeared in 1876's Hayes-Tilden dispute, where multiple slates from Florida, Louisiana, and South Carolina were debated before a congressional commission awarded them to Hayes. These precedents underscore the mechanism's role in facilitating challenges without immediate fraud, as affirmed in a 2023 Wisconsin civil settlement where the 10 electors acknowledged Biden's win but affirmed their actions preserved "ongoing legal strategy" without criminal intent.
Kaul's December 2024 indictment charged Chesebro, Troupis, and Roman with one felony count each of forgery under Wis. Stat. § 943.38, alleging they conspired to submit false certificates claiming Trump won Wisconsin's 10 electoral votes. An amended complaint on December 10 added 10 more counts, including conspiracy to commit forgery and uttering forged documents, based on the group's submission to the National Archives and delivery to Vice President Mike Pence. Prosecutors contend the scheme originated in Wisconsin, with Chesebro's November 2020 memo outlining the plan, but defense filings cite the 2022 memo as binding precedent, arguing no new evidence justifies reversal.
Special Counsel Jack Smith's federal election interference case, dismissed in July 2024 after the Supreme Court's immunity ruling in Trump v. United States, provides potential defense ammunition. Smith's August 2023 indictment referenced Wisconsin as the scheme's "proving ground," but a superseding version in August 2024 noted some electors were "tricked" into believing their role was purely contingent, echoing Hitt's testimony in the civil suit. Chesebro, who pleaded guilty in Georgia's RICO case to conspiracy, received immunity for federal cooperation and testified that the Wisconsin slate included conditional language absent in other states, bolstering arguments of good-faith legal preservation.
Kaul's office maintains the charges target the architects' knowledge that no court victory was imminent, distinguishing from the electors themselves, who face no prosecution. A Dane County judge denied dismissal on August 29, 2025, ruling the 2022 memo non-binding as it addressed a different complaint, but allowed discovery on the flip-flop claim. Trial is set for March 2026, with appeals likely to the Wisconsin Supreme Court, now 4-3 conservative after 2023 elections. The case joins ongoing probes in Arizona, Georgia, Michigan, and Nevada, where 84 total alternate electors submitted certificates, but Wisconsin's unique AG reversal highlights tensions in post-2020 accountability.
Like this article