Will NM’s fake electors be charged with crimes?
As other states take legal action against Trump’s fake electors, New Mexico appears stalled
Former U.S. President Donald Trump applauds at the conclusion of a rally at the Waco Regional Airport on March 25, 2023 in Waco, Texas. (Photo by Brandon Bell / Getty Images)
Earlier this month, the Michigan Attorney General charged 16 people with felonies for their participation in an alleged “fake elector” scheme to overturn the results of the 2020 election.
The Fulton County district attorney in Georgia is expected to announce whether there will be charges against fake electors in that state sometime this summer. Last month, Nevada GOP officials appeared before a federal grand jury in relation to a fake elector case.
But in New Mexico, there’s little information about any movement in the case.
Previous New Mexico Attorney General Hector Balderas opened an investigation into the state’s five alleged fake electors, and referred the case to federal authorities in January 2022. In the 18 months since, there has been no publicly apparent action in New Mexico from state or federal authorities.
Lauren Rodriguez, director of communications for the New Mexico Office of the Attorney General, said current Attorney General Raúl Torrez’s office was briefed about the fake electors when Torrez took over from Balderas, and the investigation is still ongoing.
“The briefing highlighted that the previous administration had referred the matter to the United States Attorney’s Office and the U.S. Department of Justice,” Rodriguez said in an email. “Our office is currently evaluating the status of the federal referral and investigating the allegations under state law. The Attorney General’s Office is committed to protecting the integrity of our election process and will hold anyone accountable who violates the law and threatens our democracy.”
Source NM asked the Department of Justice for comment, but did not receive a response by press time. Tessa DuBerry, spokesperson for the United States Attorney’s Office for New Mexico, said via email that the office does not confirm or deny the existence of ongoing investigations.
What are ‘fake electors’?
After votes are counted in a Presidential election, each state meets to certify the election results and send the tally of electoral votes to Congress. Electoral votes are proportioned relative to the population of the state (New Mexico currently has five electoral votes, while California has 55 and Texas has 38) and each electoral vote is cast by a single person, chosen by the state parties.
Following the 2020 election, former President Donald Trump attempted to undermine the results, falsely claiming to have won the election despite a lack of evidence for his election-fraud claims and a string of dozens of court decisions reaffirming President Joe Biden’s victory.
Republican parties in seven states that Trump lost – Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin – sent “alternate” electoral college votes to Washington, D.C. in an attempt to have the votes counted for Trump instead of Biden. Legal scholars generally consider these votes to be fraudulent, and even some of the Trump campaign’s own lawyers involved in the scheme privately questioned whether they were breaking the law.
New Mexico’s five fake electors included three former Republican Party of New Mexico officials and one, Jewll Powdrell, was listed as a member of the party’s Executive Committee in an RPNM press release from June 2022, a year and a half after he submitted a fake electoral vote.
It is not clear if Powdrell is still a member of the party’s Executive Committee. His name is not listed on the “Our Team” page on the party’s website and RPNM did not respond to a request for comment. A year after the Jan. 6 insurrection, Powdrell told the Las Cruces Sun-News that he had “no regrets whatsoever” about participating in the fake electors scheme.
In addition to New Mexico’s role in the scheme, now-former New Mexico Congresswoman Yvette Herrell voted against certifying Biden’s victory hours after rioters had been cleared from the U.S. Capitol.
So… is anyone in trouble for it?
Not really. Or at least, not yet.
Though 16 people have been charged with felonies in Michigan, as of now they have not been convicted of any crimes. No other states have brought charges against fake electors, though investigations are ongoing at the federal level and in multiple state and county jurisdictions.
Nevada’s attorney general announced in March that that state’s electors will not face state charges because he does not believe state law provides for criminal penalties in the case, and in June the state’s Republican governor vetoed a bill that would have made it a crime to sign a fraudulent electoral certificate, after he endorsed one of the fake electors for a position as a GOP county chair.
The Washington Post reported this month that Arizona is “ramping up” a criminal investigation into the fake electors, though the state’s Attorney General’s office told the paper they’ve not yet determined whether they will bring charges.
As noted, Georgia’s fake electors are under investigation by the Fulton County District Attorney, who formally notified them last year that they are subjects of a criminal investigation.
Wisconsin’s attorney general this month declined to comment to a local public radio station on whether there is an open investigation.
Pennsylvania’s then-Attorney General (and now governor) Josh Shapiro said last year that the actions of the state’s fake electors were “intentionally misleading,” but not illegal.
One potential wrinkle in the case is that unlike the fake electors in the other five states, New Mexico and Pennsylvania fake electors included a caveat that their votes for Trump should only be counted if their states’ electoral votes for Biden were found to be invalid. (A legal scholar told Source NM last year that New Mexico’s fake electors most likely broke state law and the caveat probably would not be enough to shield them from legal liability.)
At the federal level, Special Counsel Jack Smith is reportedly investigating the fake elector scheme, though it appears his team is focusing on potential crimes committed by Trump campaign lawyers who conceived of the scheme, rather than the individual fake electors who cast fraudulent votes, and has even offered limited immunity to at least two of the fake electors in exchange for their testimony.
One of the lawyers Smith’s office is reported to be investigating is New Mexico’s own John Eastman, who played a prominent role in Trump’s legal team during the former president’s efforts to overturn the election.
The Associated Press reported this month that New Mexico Secretary of State Maggie Toulouse-Oliver met with federal prosecutors as part of the special counsel probe, and two of the fake electors (Powdrell and former state Republican Party Chairwoman Deborah W. Maestas) were subpoenaed to testify before the Jan. 6 committee last year.
For now, though, New Mexicans questioning whether the state’s fake electors will face legal consequences will just have to keep waiting and wondering, as there’s no clear timeline for when the investigations may be resolved.
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