Legislative Leaders in Arizona, Wisconsin Were Sent Memos Regarding the Ability of State Lawmakers to Alter Selection of Electors Following 2020 Election

Memos obtained by American Oversight show that in the weeks before Trump supporters in several states gathered to falsely proclaim themselves the true presidential electors in the 2020 election, legislative leaders in Arizona and Wisconsin appear to have sought legal advice regarding whether legislators had the power to alter the selection of electors after the election had taken place.

Both memos, one sent to Arizona Senate President Karen Fann by that state’s Legislative Council and the other to Wisconsin Assembly Speaker Robin Vos by that state’s Legislative Reference Bureau, confirmed that state lawmakers cannot alter electors’ selections or actions after an election — a democratically dangerous strategy that had been floated by allies of former President Donald Trump seeking to overturn his 2020 election loss.

It isn’t clear whether Fann or Vos sought the guidance in furtherance of such a plan, or whether it was to dismiss calls from the Trump campaign and members of their own party to take such action. Both Fann and Vos would go on to pursue highly partisan and flawed investigations of the election in their states, based on false claims of widespread voter fraud.

In a memo sent to Vos on Nov. 16, 2020, an attorney from Wisconsin’s Legislative Reference Bureau wrote, “You have asked whether the legislature, after a presidential election, may affect the selection or actions of the state’s presidential electors.” The attorney explained that the legislature cannot retroactively change the selection or actions of presidential electors.

Prior to receiving the memo, Vos had directed the Assembly’s elections committee to review the results, citing “concerns” about voter fraud. At the time, the vice chair of the committee, state Rep. Joe Sanfelippo, suggested that the Legislature may need to (illegally) intervene to overturn the results should significant fraud be found. “If an investigation shows these actions affected the outcome of the election, we need to either declare this past election null and void and hold a new election,” he said, “or require our Electoral College Delegates to correct the injustice with their votes.” 

In the memo sent to Fann, the Arizona Legislative Council’s general counsel wrote, “This memorandum is in response to your questions about the appointment of presidential electors and the ability of the legislature to change this process for the current presidential election.”

Fann included the memo in a Dec. 2 email to constituents who were demanding legislative action, writing that it was “the whole response I’ve been sending to the thousands … of emails we are receiving.” Fann’s response noted that the Legislature could not “retroactively modify” existing state laws on elector selection, but said that she and other legislative leaders had privately met with Trump’s legal team, including Rudy Giuliani, and that the “results of court proceedings and other administrative remedies will most certainly impact the overall outcome of the presidential election.”

On Dec. 14, 2020, the day of the Electoral College’s official vote, Republicans in Wisconsin, Arizona, and five other states that Trump had lost met to submit to Congress phony certificates declaring themselves the true electors, either outright or contingent upon court decisions finding the election to have been compromised by fraud (an outcome for which there was and is no evidence). Last year, American Oversight obtained and published those documents, which have come under renewed scrutiny in recent weeks: The Justice Department has said it is investigating the matter, and the House Jan. 6 committee has issued subpoenas to more than a dozen of the false electors. 

Other documents American Oversight obtained, published last week, provide more information about senior Arizona legislators’ contact at that time with members of Trump’s legal team and prominent election deniers. In emails sent to legislators in early December 2020, the Trump supporters sought to obtain and inspect images of ballots cast in Maricopa County for signs of fraud in an attempt to throw out “invalid” ballots and turn over the state’s electoral votes to Trump. The emails appear to be a precursor to the discredited “audit” of Maricopa’s election results that the Senate would later launch.

In Wisconsin last year, Vos authorized another review of the state’s 2020 election, which is being led by attorney Michael Gableman and has extended into the new year. American Oversight’s investigation of Gableman’s probe has revealed it to involve partisan actors who previously tried to overturn the election results. In recent weeks, Vos has reiterated that it is impossible to decertify the election, following a resolution proposed by state Rep. Tim Ramthun that would “reclaim” the state’s electoral votes. 

American Oversight will continue to investigate efforts to overturn or cast doubt on the 2020 election. Read more and follow our investigations here.