Consider two current news items: one on the “Stop the Steal” fantasies about the 2020 election, the other on the equally quixotic effort to pretend that the Equal Rights Amendment was ratified on time. Both illustrate the power of magical thinking about the National Archives. Unfortunately for the fantasists, American law is not a Nicholas Cage movie.
Item one: As part of the baseless effort to dispute Joe Biden’s victory, Trump electors in seven states met in their states and cast purported “electoral votes” for Trump, even though Biden had won the popular vote in those states. As I detailed at the time, those votes were never authorized or certified by any arm of their states’ governments. Yet, the existence of these thoroughly bogus “electoral votes” was the predicate for John Eastman’s advice to Donald Trump and Mike Pence about how Pence and/or Republicans in Congress might thwart the counting of Biden’s electors. In order to provide a fig leaf of justification for that scheme, phony “certificates” were sent to the National Archives, which under the Electoral Count Act plays a role in receiving and transmitting the legitimate certificates signed by each state’s governor. The phony certificates were, apparently, made up in the same format as legitimate ones, with similar recitals.
This is, of course, indefensible, and a sign of detachment from reality. But is it a crime? Because these were false statements intended to influence the outcome of a legal process, some have argued that it is. George Conway, for example: “Anyone who prepared or submitted, or aided, abetted or conspired in the preparation or submission of, false electoral-vote certificates, would presumably be guilty of a host of federal and state criminal offenses.” The Justice Department is investigating, and Democratic politicians such as Nevada governor Steve Sisolak are calling for prosecution. Certainly, at least some of the key elements of a federal or state crime are present here.
The people who filed the fake certificates have nobody but themselves to blame if they get prosecuted, but there are reasons to doubt that a criminal case would actually stand up in court, and prosecutors ought to think twice about bringing one. There would be one big obstacle to prosecution, at least under most of the major federal laws, and many state laws as well: Lies and fraud have to be material. Materiality is a traditional common-law element of fraud that the Supreme Court has read into most false statement and fraud statutes. A false statement is material if it has “a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.” United States v. Gaudin (1995). The requirement of materiality prevents not only civil lawsuits and criminal prosecutions over trivial matters, but also over lies when the person receiving the lie knows the truth anyway, or does not care. As the Supreme Court explained in 2016 in Universal Health Servs., Inc. v. United States, a False Claims Act case involving false representations that a claimant has complied with all relevant laws:
Under any understanding of the concept, materiality look to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation. In tort law, for instance, a matter is material in only two circumstances: (1) if a reasonable man would attach importance to it in determining his choice of action in the transaction; or (2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter in determining his choice of action, even though a reasonable person would not . . .
If the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material. (Quotations and citations omitted)
Prosecutors may argue that the existence of the false certificates was material because they were used as a pretext by those who objected to Biden’s certification. But the reality is, everybody involved in the process knew that these were not real certificates backed by a governor, a legislature, or any arm of a state government, or representing the outcome of the actual popular vote in those states. That was all out in the open, and widely reported at the time, in press reports I summarized as they happened. As the Arizona Republic reported on December 14, 2020:
An Arizona group sent the National Archives in Washington, D.C., notarized documents last week intended to deliver, wrongly, the state’s 11 electoral votes for him. Copies of the documents obtained by The Arizona Republic show a group that claimed to represent the “sovereign citizens of the Great State of Arizona” submitted signed papers casting votes for what they want: a second term for Trump and Vice President Mike Pence. Mesa resident Lori Osiecki, 62, helped created a facsimile of the “certificate of ascertainment” that is submitted to formally cast each state’s electoral votes as part of an effort to prevent what she views as the fraudulent theft of the election. . . . While Osiecki’s elector documents do not appear to have been taken as genuine, they are part of a weekslong effort, led by Trump, his advisers, and involving Arizona Republican Party officials and three members of Arizona’s GOP congressional delegation casting doubt on the legitimacy of Biden’s victory in Arizona and nationally. . . . Arizona’s ersatz electors sent their choices using documents notarized by Melanie Hunsaker, who works in real estate.
The Nevada electors cast their “votes” in a live event streamed on YouTube. This is unlike, say, casting a fraudulent ballot that disappears into the pile of legitimate votes; the denial of reality was open and notorious, and the vice president and the majority of both houses of Congress saw right through it. Maybe there is a criminal statute that prosecutors can dig up that gets around the problem, but the simple reality is that everybody knew these were not real certificates just because they were sent to the National Archives. It was all a fantasy.
Item two: Today, the “ERA Coalition” is holding a rally and “virtual press conference” with Senator Ben Cardin and Congresswoman Carolyn Maloney demanding that the National Archives accept the Equal Rights Amendment as a ratified part of the Constitution, notwithstanding the fact that the congressionally imposed deadline for a sufficient number states to ratify the ERA (originally 1979, but arguably extended to 1982) expired 40 or more years ago. The coalition has even filed an amicus brief in a lawsuit seeking to compel the archivist to accept the filing:
Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process,” writes the ERA Coalition and advocates in the amicus brief. “One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.
This is every bit as bogus a demand as the phony electors. As Ramesh Ponnuru and Ed Whelan have detailed, the legal case for the ERA having expired is so strong that even Ruth Bader Ginsburg, a diehard ERA supporter, declared in 2019 that the deadline had passed, so “I hope someday it will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.” (Congress won’t be doing that anytime soon). Ginsburg’s position was taken as well by D.C. federal district judge Rudy Contreras, an Obama appointee, in March 2021. It has long been the legal position of the Office of Legal Counsel.
While the Biden Justice Department is defending the archivist in the current lawsuit, the president issued a statement today trying to have it both ways, pretending that the ERA has been legally ratified without actually ordering OLC to treat it as ratified: “I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA. As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’s way from doing so.” (Emphasis added).
OLC has been left to thread the needle between its own legal conclusions and dancing to Biden’s tune, talking up the possibility that its position “is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions,” yet ultimately adhering to its long-standing conclusion that “the ERA Resolution has expired and is no longer pending before the States,” and that “the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution.”
Would it be a crime to send the ERA to the National Archives? That would present the same issue as in the phony-electors situation: Everybody but the bitter-enders knows this is nonsense. You can’t rewrite reality by sending your own version of it to the National Archives. Donald Trump lost to Joe Biden. The Equal Rights Amendment expired unratified. No piece of paper filed with the archivist changes that.