Wisconsin Democrat AG declared 2020 alternate electors weren’t illegal, then prosecuted them anyway

The Wisconsin Justice Department initially concluded the Trump 2020 reelection campaign’s plan for alternate electors after losing the presidential race was not illegal. But after U.S. Justice Department special counsel Jack Smith brought federal charges against Donald Trump, Wisconsin’s Democratic attorney general followed suit with charges against campaign members just ahead of Trump's successful 2024 reelection bid.

After losing the 2020 race to Democratic challenger Joe Biden, the Trump campaign filed a series of legal challenges in multiple states – including Wisconsin – in which Trump appeared to have lost. Republicans put together slates of “alternate” electors in multiple states, again including Wisconsin, allegedly in case Trump’s legal challenges prevailed. Trump also allegedly wanted then-Vice President Mike Pence to cite “dueling” electors from GOP states and to reject certifying Biden’s win, which Pence did not do.

After receiving a legal complaint from left-wing advocacy groups calling for a state-level investigation, the Wisconsin DOJ issued a lengthy memo in early 2022 that concluded “Wisconsin law does not prohibit an alternate set of electors from meeting” and that “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 [the alternate Republican electors] violated Wisconsin election law.”

Then Smith indicted Trump in the summer of 2023 related to his alleged actions related to the 2020 election, followed a year later by superseding charges in summer 2024. Smith contended that Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.”

“The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws,” the DOJ indictment against Trump said.

In the wake of Smith’s criminal charges, and seemingly in contravention of the legal memo produced by his own office two years earlier, Democratic Wisconsin Attorney General Josh Kaul filed charges against three Trump campaign associates — campaign attorney Kenneth Chesebro, campaign aide Michael Roman and former judge and campaign lawyer Jim Troupis — in the summer of 2024, just ahead of the Republican National Convention in Milwaukee, charging them with a fraud conspiracy related to the alternate electors plan in Wisconsin.

Kaul then hit the trio with 10 more counts a month after Trump defeated Democratic presidential nominee Vice President Kamala Harris in November 2024. 

Chesebro, Roman, Troupis, and the 10 Wisconsin Republican alternate electors were among those who received a federal pardon by Trump earlier this week, but a presidential pardon does not apply to state-level charges, meaning the criminal charges pursued by Democrat-led Wisconsin continue.

Lawyers for Troupis, a former Wisconsin mayor and judge who was working for the Trump campaign in his state in 2020, argued in a motion to dismiss in state court late last year that Kaul “has adopted a different position further and further away from the facts that the Attorney General embraced just two years ago: Troupis and the electors did nothing illegal.”

Recently-declassified revelations related to Smith's electorate case known as Arctic Frost chronicle the expansive lawfare efforts against Trump and MAGA world kicking into high gear in 2022, as criminal inquiries – which would soon lead to criminal charges – launched as Trump leaned toward running for president again. The state-level legal proceeding, such as the one in Wisconsin, have not received nearly as much attention.

The Wisconsin DOJ did not return a request for comment sent by Just the News.

The “alternate electors” plan

A review by Just the News showed that dueling slates of electors were submitted in two presidential elections prior to 2020: the 1876 contest Republican Rutherford Hayes and Democrat Samuel Tilden, in which Hayes ultimately emerged victorious, and the 1960 race between Republican Richard Nixon and Democrat John F. Kennedy, in which Kennedy assume the presidency.

In each election, the Democrats submitted a competing slate of electors from states that, when the electoral certificates were submitted, had been determined to have been won by the Republican, although in 1960, Hawaii – the state in question – flipped back to the Democrats after a recount.

No criminal charges flowed from either. 

The “alternate” elector certificates in December 2020 were signed by Republicans in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin in December 2020 and were then sent to the National Archives. 

Many of the state groups contended this was done contingent on Trump winning his lawsuits related to their states and on them being recognized as rightful replacement electors, but that recognition did not occur.

The groups from New Mexico and Pennsylvania explicitly stated their certificates of electoral votes in their respective states were being filed only in case these alternate electors were later found to be proper electors.

Trump did not win any of the lawsuits he may have needed for the replacement-electors plan to work, and no state legislatures officially went along with it.

The alternate electors from New Mexico wrote that they were doing this “on the understanding that it might later be determined that we are the duly elected and qualified Electors.” 

The group from Pennsylvania said they were signing “on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors.”

The office of then-Pennsylvania attorney general Josh Shapiro said at the time that “these ‘fake ballots’ included a conditional clause that they were only to be used if a court overturned the results in Pennsylvania, which did not happen” and that “though their rhetoric and policy were intentionally misleading and purposefully damaging to our democracy, based on our initial review, our office does not believe this meets the legal standards for forgery.”

The election had been held on Nov. 3, 2020. With Biden holding a lead over Trump, a recount was ordered in Wisconsin on November 19.

The chairperson of the Wisconsin Elections Committee certified that electors for Biden and Harris, who replace Biden as the nominee, had received the most votes, and Democratic Gov. Tony Evers certified the result on November 30.

The Trump campaign had filed multiple lawsuits in Wisconsin, which remained in litigation in December 2020, with the Supreme Court only denying the final petition for a writ of certiorari in early 2021.

A footnote in a Trump campaign filing with the Supreme Court of Wisconsin on December 11, 2020, stated, “following the recommended approach to situations involving court challenges in Presidential elections which are not resolved by the time the Presidential electors must cast their votes … the Trump-Pence Campaign has requested its electors to sign and send to Washington on that date their votes, to ensure that their votes will count on January 6 if there is a later determination that they are the duly appointed electors for Wisconsin.”

The campaign argued, “This practice dates back at least as far as 1960, when the Kennedy electors in Hawaii voted on the date the Electoral College met, even though on that date the Nixon electors had been ascertained by the acting Governor to have won the state; only after further litigation were the votes of the Kennedy electors approved and ultimately counted in Congress.”

Wisconsin Republican Party Chairman Andrew Hitt released a statement on December 14, 2020, arguing, “while President Trump’s campaign continues to pursue legal options for Wisconsin, Republican electors met today in accordance with statutory guidelines to preserve our role in the electoral process with the final outcome still pending in the courts.”

The Wisconsin Supreme Court issued a 4-3 ruling the same day, siding with Biden over Trump, just hours before the Electoral College met to certify the their election results. 

Wisconsin DOJ concludes the Wisconsin alternate electors plan was legal

The left-wing group Law Forward filed a February 2021 complaint in Wisconsin on behalf of the leadership of the Service Employees International Union’s Wisconsin State Council, arguing that local or state prosecutors in Wisconsin should pursue criminal charges related to the alternate electors plan.

“At their meeting, the fraudulent electors executed documents that they would later hold out as official documents casting Wisconsin’s ten electoral votes for candidates who lost Wisconsin’s statewide November 2020 election and therefore had no legal entitlement to those electoral votes,” the complaint argued. ​​“The only reasonable inference that can be drawn from these documents is that the fraudulent electors created and delivered these documents for the purpose, and with the intent, that they be received as valid documentation for the purpose of inducing the United States Congress to credit the wrong candidates with having earned Wisconsin’s ten electoral votes.”

Kaul tried to punt to the Biden DOJ in January 2022, saying, “I believe it’s critical that the federal government fully investigates and prosecutes any unlawful actions in furtherance of any seditious conspiracy.”

Law Forward also sent a letter to Milwaukee County District Attorney John Chisholm in February 2021, making similar arguments for a criminal investigation.

Milwaukee County Assistant District Attorney Matthew Westphal similarly sought to push the decision off onto higher authorities in January 2022, saying that the office “respectfully believes that this investigation request is more appropriately addressed to the Wisconsin Department of Justice or the United States Department of Justice to determine what, if any, steps should be taken.”

The Wisconsin Attorney General’s Office eventually sent a lengthy February 2022 memo to the Wisconsin Elections Commission, concluding that the Republican alternate electors plan did not break state law.

“This matter involves an allegation that ten presidential elector nominees violated certain Wisconsin election laws when they met on December 14, 2020, to vote as presidential electors for Donald Trump and Michael Pence. That vote occurred after a statement of canvass certified election results in favor of Joseph Biden and Kamala Harris, but while court challenges to the election result were pending,” the Wisconsin DOJ memo said. “Complainants argue that the December 14, 2020 meeting was an unlawful attempt to undermine the election, and the Respondents argue that the meeting was necessary to avoid missing a statutory deadline while legal challenges were pending.”

The Wisconsin DOJ memo also states: “Nothing in either statute prohibits or otherwise limits a party from meeting to cast electoral votes during a challenge to an election tabulation. They say nothing about an alternative set of electors casting votes and do not expressly prohibit a slate of electors from casting votes to preserve their votes in case pending legal challenges prove successful.”

“Respondents point out that if they did not meet that day, they risked having no electoral votes that could possibly be counted if their legal challenges were successful and Trump were declared the successful candidate by legal process,” the Wisconsin attorney general’s office memo found. “Respondents’ concern is reasonable; courts have found that candidates’ delays can bar legal rights.”

The Wisconsin DOJ memo also pointed to the 1960 election between Nixon and Kennedy, noting that in Hawaii that year “the recount was not completed by the date that presidential electors voted” and so dueling electors from “both the Democrats and Republicans met and cast their votes for their respective candidates.”

“The Respondents actions here were similar to those of the Democratic presidential electors in Hawaii,” the Wisconsin attorney general’s office concluded. “They cast their votes, even though the canvass did not reflect a Trump victory, in order to preserve the opportunity for the votes to be counted if a court challenge found that Trump received the majority of votes.”

The Wisconsin Elections Commission voted in March 2022 to unanimously reject the complaint from Law Forward, reportedly citing the legal reasoning by the Wisconsin DOJ. The commission in December 2023 again voted unanimously to reject the complaint.

Democrat-led pressure campaign continues

Evers, the Democratic governor of Wisconsin, repeatedly sought to bring pressure to bear to get criminal charges filed in relation to the alternate electors plan.

“Somebody has to be held accountable, period,” he said in July 2023. “To have 10 people meet in secret in the capitol, there has be some accountability. From my observations, [Kaul has] been working with the federal government.”

Evers added: “We will be involved.”

The Democrat’s campaign arm – Tony for Wisconsin – sent out an August 2023 fundraising message, calling on his supporters to “add your name if you agree that Trump's fake electors must be held accountable!”

Democrats led by Law Forward and other left-wing lawyers brought a civil lawsuit against Chesebro, Troupis, and the 10 alternate Republican electors in 2022. 

“The Wisconsin electors were tricked and misled into participating in what became the alternate elector scheme and would have never taken any actions had we known that there were ulterior reasons beyond preserving an ongoing legal strategy,” Hitt claimed in 2023 when the Republican electors reached a settlement in the lawsuit.

A settlement was also reached by Chesebro and Troupis in 2024.

Troupis told the media in 2024 that the "alternate elector ballots" were "a reasonable course of action" because the results of the 2020 race could still be appealed to the U.S. Supreme Court at the time that the alternate electors met in December 2020.

"The settlement was made to avoid endless litigation, and nothing in today's settlement constitutes an admission of fault, nor should it," Troupis said.

By that time, Smith had already filed similar federal charges against Trump, and Kaul would soon join in labeling the alternate electors plan a criminal act.

Wisconsin’s Democratic AG files charges

Kaul, who has served as Wisconsin’s Democratic attorney general since 2019, filed charges against Chesebro, Roman and Troupis related to the 2020 alternate electors plan in June 2024.

Kaul’s office said the men were charged with “conspiring to commit the crime of uttering as genuine a forged writing or object, in violation of Wis. Stat. §§ 939.31 and 943.38(2)” and that the crime charged was a felony punishable by up to six years in prison.

“The criminal complaint in this case alleges that the defendants were part of a conspiracy to present a certificate of purported electoral votes from individuals who were not Wisconsin’s duly appointed electors,” Kaul said when announcing the charges. “The Wisconsin Department of Justice is committed to protecting the integrity of our electoral process.”

The Wisconsin DOJ contended that the criminal complaints against the three men “outline an alleged conspiracy to have unappointed electors meet and cast votes in Wisconsin.”

Chesebro, a key part of the Trump campaign’s 2020 legal efforts, also pleaded guilty in a criminal racketeering case in Georgia in 2023. He lost his law license in New York in January of this year. Chesebro was also reportedly identified as an un-indicted co-conspirator in Smith’s January 6-related federal indictment against Trump in 2023.

Roman, who helped lead Trump’s Election Day operations in 2020, was also charged in Georgia and Arizona.

The Democratic attorney general’s office in Wisconsin hit all three men with 10 more counts — one for each alternate elector — in December 2024.

“In interviews with law enforcement, the majority of the Unappointed Electors stated that they did not believe that their signatures on the Unappointed Elector Certificate would be submitted to the President of the Senate at the Joint Session of Congress on January 6 as if they conveyed Wisconsin’s electoral votes without a court ruling declaring them as such,” the complaint stated. “In interviews with law enforcement, the majority of the Unappointed Electors stated that they did not consent to having their signatures presented as if they conveyed Wisconsin’s electoral votes without a court ruling to that effect.”

The one-word response from Evers to the charges was, “Good.”

“This is outrageous,” Sen. Ron Johnson, R-Wisc., said on X in response to the charges. “Now Democrats are weaponizing Wisconsin’s judiciary. Apparently conservative lawyers advising clients is illegal under Democrat tyranny. Democrats are turning America into a banana republic.”

Troupis fights back — and cites Wisconsin DOJ’s own prior memo

Lawyers for Troupis submitted a July 2024 filing with the State of Wisconsin’s Circuit Court in Dane County, arguing against the claims of criminality.

“Pursuing a client’s legitimate claims is every lawyer’s duty,” his lawyers argued. “We are called to do it ethically and with great vigor. And Troupis did just that. He ensured that his client’s claims stayed viable as he sought level-upon-level of review. Keeping those claims alive meant he followed the script set out in 1876 (in a disputed election), echoed in 1960 (in another disputed election), and trumpeted in 2000 Justices Ginsberg’s and Justice Stevens’s dissents in Bush v. Gore (in yet another disputed presidential election).”

The attorneys added: “The script was this: as the legal challenges to the election continued through the courts, an alternate slate of electors would vote on the date prescribed by law — December 14. That’s because if the Supreme Court reversed, all of the legal challenges would be for naught. Unless the Republican electors met and voted on December 14, their votes wouldn’t have counted.”

Lawyers for Troupis filed motions to dismiss the case against him in December 2024. The legal brief supporting the motions to dismiss harshly criticized the decision by Kaul to charge their client over his role with the alternate electors.

“This Court has stepped into the beginning of round three in the fight over whether Troupis violated any law in representing the President during the 2020 recount,” his lawyers said. “In each round, the State’s position has adopted a different position further and further away from the facts that the Attorney General embraced just two years ago: Troupis and the electors did nothing illegal. Instead, his sin was representing a deeply unpopular client in prosecuting that client’s legitimate claims about the 2020 election — claims that three Justices of the Wisconsin Supreme Court agreed with Troupis on.”

His lawyers argued that “there is not probable cause to believe that the alternate electors’ ballot was a forgery, nor is there probable cause to believe Troupis engaged in a conspiracy to utter a forged document.”

“Having the alternate electors meet and vote was not criminal or even untoward – it’s the prescribed (and universally accepted) means of keeping options alive during a Presidential recount,” the attorneys for Troupis told the court. “Importantly, he did nothing (and there’s nothing alleged in the criminal complaint) that allows those actions to constitute the crime of forgery. As such, the complaint must be dismissed.”

The lawyers for Troupis also noted that the criminal complaint against him “briefly alludes” to the Wisconsin DOJ memo from 2022, but that the criminal complaint “then states (incorrectly) that the memo didn’t consider the crime of forgery.”

The attorneys for Troupis then quoted the 2022 at length, laying out half a dozen main arguments they said flowed from it, arguing that “the defense could not have made those points better” while lamenting that “none of that information from the memo or background on how electors work when there’s an ongoing legal challenge to a Presidential election is laid out in the criminal complaint.”

Troupis made a court appearance that month as well, telling reporters that Kaul “should be ashamed of himself” for launching a “political case” against him.

“My family and I have endured nonstop vicious and unrelenting savage attacks on my reputation, on my livelihood,” Troupis said. “We had thought that this would end – the country asked for it to end in November, but lawfare, in all its despicable forms, will not end in Wisconsin.”

A Wisconsin judge rejected the motions to dismiss by Troupis and other defendants in August of this year.

Trump’s pardon might not matter in Wisconsin case

Judge Tanya Chutkan dismissed the January 6-related case brought by Smith against Trump in November 2024 after Trump’s win, pointing to the Office of Legal Counsel’s position that a sitting president could not be prosecuted by his own DOJ.

Smith still released his report on his January 6-related effort against Trump in January of this year, a couple weeks before Trump’s second inauguration. The special counsel report concluded that “substantial evidence demonstrates that Mr. Trump then engaged in an unprecedented criminal effort to overturn the legitimate results of the election in order to retain power.”

DOJ weaponization czar and pardon attorney Ed Martin announced this week that “President Trump pardoned the 2020 Alternative Electors.”

Trump issued the sweeping pardon to dozens of Republicans from multiple states who had been linked to the alternate electors plan in 2020.

“This proclamation ends a grave injustice perpetrated on the American people following the 2020 Presidential Election,” Trump’s decree said, adding that it granted a “full, complete, and unconditional pardon” to everyone involved with “any slate or proposed slate of Presidential electors … in connection with the 2020 Presidential Election”

His decree added that “this pardon does not apply to the President of the United States, Donald J. Trump.”

Johnson, the senator from Wisconsin, celebrated on X but made it clear that the criminal cases are not over.

“Thank you @POTUS and @EdMartinDOJ for issuing these well-deserved pardons,” Johnson said. “It’s well past time for @JoshKaulWI to end his corrupt lawfare against a good and honorable man, Judge James Troupis.”