Five people behind fake election certificates likely broke NM law, prof says
The five Republicans added a caveat they probably hoped would protect them, but it might not be enough
U.S. Speaker of the House Nancy Pelosi (D-CA) pauses for a moment of silence alongside fellow lawmakers and congressional staff members as they participate in a prayer vigil to commemorate the anniversary of the Jan. 6 attack on the U.S. Capitol. On Jan. 6, 2021, supporters of President Donald Trump attacked the U.S. Capitol Building in an attempt to disrupt a congressional vote to confirm the electoral college win for Joe Biden. (Photo by Anna Moneymaker / Getty Images)
The New Mexico Republicans who signed false certificates attempting to hand the state’s five electoral votes to former President Donald Trump likely violated state law and potentially federal law, according to a University of New Mexico law professor who’s been following the case.
UPDATE: Friday, Jan. 28, 2022
The panel investigating the Jan. 6 attack on the U.S. Capitol announced today that it had issued subpoenas for 14 of the would-be electors from around the country. Two are from New Mexico: Jewll Powdrell and Deborah W. Maestas.
Maestas, reached by phone Friday afternoon, referred comment again to the Republican Party of New Mexico. Powdrell could not be reached.
Mike Curtis, a spokesperson for the party, declined to comment on the subpoenas.
“We don’t comment on pending investigations,” he said.
The local Republicans on Dec. 14, 2020 signed certificates affirming that Donald Trump — not President Joe Biden, who won the election here by nearly 100,000 votes — should receive the five electoral votes, according to documents published by watchdog group American Oversight. The signers are Jewll Powdrell, Deborah W. Maestas, Lupe Garcia, Anissa Ford-Tinnin and Rosie Tripp.
Herrera and Ford-Tinnin used to be high-ranking members of the state Republican Party.
So far, the New Mexico Republican Party has refused to comment on the acts by its members, and the signers have been less than forthcoming. Maestas, reached last week by phone, referred comment to the state GOP and its chairman Steve Pearce. A party spokesperson, however, said the local party would not be commenting.
“When we have something to say, we’ll definitely get it out, but I’m not going to be commenting on that right now,” spokesperson Mike Curtis told Source New Mexico. He then hung up before answering whether the party directed Maestas to refer questions their way.
Powdrell declined to comment to Source New Mexico, though he’s spoken previously to the Las Cruces Sun-News and said he had “no regrets” in signing the certificate. Garcia, Ford-Tinnin and Tripp could not be reached.
How it works
Each state party designates “electors” to sign certificates granting their presidential candidate the electoral votes they won in each state. In New Mexico, that meant that on Dec. 14 last year, five party officials arrived at the Roundhouse to deliver their certificates and, in doing so, cast the state’s electoral votes for Biden. New Mexicans elected Biden by about 99,000 votes here, a victory of almost 11 percentage points.
But five Republicans here apparently submitted a separate set of certificates to a federal entity at some point, according to American Oversight. It’s not yet clear who coordinated the effort in New Mexico or who submitted the records.
The five Republicans signed the fake certifications despite Biden’s margin of victory and at the peak of the coronavirus pandemic in New Mexico, when about 30 people were dying each day here.
Last week, Attorney General Hector Balderas referred the matter to the United States Attorney’s Office prosecutors, and he said he would begin a review of state law as it applies here in New Mexico. A spokesperson told Source New Mexico on Monday that the state review is not yet a criminal investigation.
“Election laws are the foundation of our democracy and must be respected,” Balderas said in a statement. “While review under state law is ongoing, we have referred this matter to the appropriate federal law enforcement authorities and will provide any assistance they deem necessary.”
The signed certificates came from New Mexico and six other states — Michigan, Pennsylvania, Wisconsin, Arizona, Georgia and Nevada —, according to American Oversight, which obtained the records from a Freedom of Information Request. They attempted to certify Trump as the winner of the election despite Biden receiving about 7 million more votes nationally and winning all seven states. Trump and other mainstream Republicans falsely claimed the 2020 presidential election was stolen.
The seven states with fake election certificates:
|Biden %||Trump %||Difference %|
Recent reporting by CNN and the Washington Post found that Trump’s lawyer Rudy Giuliani spearheaded the scheme to get alternate electors queued up in each state to certify the election for Trump, despite what the actual results showed. It was an integral part of the Trump administration’s effort to overturn the results of the election, according to the news reports, and it may become a subject of the ongoing congressional review investigating the Jan. 6 uprising at the United States Capitol building.
The faked certificates submitted from New Mexico are also different from those in most of the other six states. Those other certificates begin by stating: “We, the undersigned, being the duly elected and qualified Electors…”
But those from New Mexico and Pennsylvania add a caveat — one that would make them electors only if the Democratic electors’ votes are tossed out for some unexplained reason. It states:
“We, the undersigned, on the understanding that it might be later determined that we are the duly elected and qualified Electors …”
Joshua Kastenberg, a University of New Mexico law professor, teaches courses on constitutional law and criminal law. He said the New Mexico signers’ caveat might weaken any case against them, because it enables them a “safety valve” with which they can claim they were not attempting to undermine the election here, and instead just signing in case Biden’s victory was tossed out.
But it doesn’t mean they’ll escape being indicted for election fraud, Kastenberg said, which is what he says their conduct amounts to under state law.
“They’re not in as bad a position as, say, the Michigan folks,” Kastenberg said. “To me, it’s still probably enough to get an indictment.”
The indictment would be for “signing or offering to sign a certificate of registration when not a qualified elector,” which is a fourth-degree felony under state law. The fact that the signers included the caveat might make a jury more sympathetic, he said, but the five of them were clearly not qualified electors, he said.
“They probably had a lawyer in their midst saying, ‘This is our escape clause case. If we get into trouble we can say, unlike the others, we put this conditional statement in there.’” he said. “But here’s the thing – they’re holding themselves out as legitimate electors” and they’re not.
Michigan’s attorney general also referred the case there to federal prosecutors, and Nevada’s said the case is on the office’s radar.
As for a federal indictment, Kastenberg said, it depends on the manner in which the fake certifications were delivered and to whom. It could amount to mail or wire fraud, a broad category of crime that prohibits “any scheme or artifice to defraud the United States government or others,” he said, though that is typically related to monetary damages.
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