Many of the legal theories put forward Friday by lawyers for the fake electors indicted in the Georgia election subversion case fell flat when the same arguments were made in federal court earlier this year.
Attorneys for David Shafer, a 2020 fake elector and the former chair of the Georgia Republican Party, said at Friday’s hearing that the indictment should be dismissed because there wasn’t anything illegal about the electors’ plot.
Lawyers for the fake electors made many of these same arguments at a federal court hearing in September, when they were trying to move their Fulton County cases into the federal system.
But their theories didn’t carry the day — the federal judge who oversaw those proceedings didn’t embrace any of their theories and ruled that the criminal cases should remain in state court.
For instance, on Friday, Shafer attorney Holly Pierson claimed there weren’t any lawfully recognized electors by the “safe harbor date,” a date set by federal law when states are supposed to certify their presidential results. In 2020, Georgia state officials certified Joe Biden’s victory by the “safe harbor date.”
But Pierson argued that there weren’t any lawful electors at that time because there was an ongoing lawsuit filed by Trump, challenging the results. She said that because there was a pending legal challenge, both Biden’s and Trump’s electors were “contingent” electors who needed to cast their votes conditionally and wait to see if the results of the election would be reversed in the Trump lawsuit.
“They’re all contingent electors if they don’t meet the safe harbor date,” Pierson said.
She made the same arguments at the federal hearing in September, while pushing to move the case to federal court. US District Judge Steve Jones did not embrace her theories.
Pierson is making these arguments again because the case is in state court, where Fulton County Superior Court Judge Scott McAfee is overseeing the case and could dismiss the charges if the indictment doesn’t comply with state law.
“The elephant in the room is that none of them were presidential electors,” Fulton County prosecutor Will Wooten said at Friday’s hearing. “None of them are presidential electors. They’ve never been presidential electors as it relates to the 2020 election. So those arguments do not apply.”
He added: “The defendant’s safe-harbor theory is incongruent with the Constitution.”
