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Why Trump’s ‘fake electors’ in Pennsylvania are likely to avoid prosecution

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Why Trump’s ‘fake electors’ in Pennsylvania are likely to avoid prosecution


Why is the situation in Pennsylvania different from other states?

Unlike in other states, Pennsylvania’s fake electors added an important caveat to the certificate that likely shielded them from the consequences faced by their counterparts in Michigan.

Pennsylvania’s certificate said the votes they were casting should only be counted if a court found that they were the “duly elected and qualified Electors.”

“The reasoning that we were given for the need to go through with this process was that [the campaign] was concerned that there was a number of court cases that the Trump campaign had not adjudicated yet,” DeMarco said, and the campaign hoped a favorable ruling for Trump in those cases might have changed the outcome of the vote. In that scenario, DeMarco added, the campaign was concerned that if there was no slate of electors submitted under the constitutional process, the court victories would be meaningless.

“So I as well as others said ‘Fine, but let’s make the document reflect that,’ ” he said. “So we’re a bit different from the other folks.”

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Nevada’s fake electors included similar language in their certificate.

The fake electors’ certificate in Michigan, where they were recently charged with forgery and other related crimes, included no such caveat.

Gerow echoed DeMarco’s remarks that the concern among the electors was that they would be viewed as trying to put themselves forward as the legitimately appointed electors.

“But rather, we were the placeholders in case any court found that the Biden slate that claimed to be the legitimate slate was not,” he said. “I’ve been a lawyer for almost 45 years, and I think what we did was totally appropriate.”

Still, many of Trump’s legal arguments had been settled by Dec. 14. Many of the original Trump electors, like Pennsylvania GOP chairman Lawrence Tabas, also declined to sign the certificate either due to concerns over legality or because they recognized Biden as the legitimate winner, according to the final report of Congress’s January 6 committee.

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Kevin Greenberg, a Philadelphia-based attorney who has represented national Democratic clients, including in 2020, agreed that the caveat on the courts was an important distinction that set Pennsylvania and Nevada apart. He said in unusual situations like Hawaii in 1960 or Florida in 2000 — situations where there was in fact a “bona fide” dispute about the results — a second, conditional slate may theoretically be appropriate.

“I understand proactively voting your electors in a truly disputed situation, but always with a crystal clear statement that your actions are not representations of victory but only a prophylactic measure in case a court action finally goes your way,” he said. “That’s why I expect Pennsylvania will not have the criminal prosecutions we are seeing elsewhere.”

“In Pennsylvania, the problem is not what these electors did, but what others did with this alternate slate — they made vastly more of it than it was,” he said.

Greenberg noted that some members of Congress voted against accepting Biden’s electors because the alternate slates had submitted votes for Trump, and other Trump allies used them as part of the pressure campaign aimed at getting then-Vice President Pence to do the same, even in the case of the Pennsylvania slate’s conditional votes.

What’s the status of Pa.’s fake electors?

Neither DeMarco or Gerow said they were worried about any criminal repercussions, and both pointed out that even Gov. Josh Shapiro, a Democrat, agreed with them.

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In early 2022, Shapiro, then attorney general, said the Pennsylvania fake electors’ actions did not cross the line into criminality.

“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,” Shapiro said. “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.”

A spokesperson for current Attorney General Michelle Henry said this month that position has not changed.

The detail behind how Pennsylvania’s electors came together may still be of interest to federal investigators weighing criminal charges for Trump. Trump recently revealed that he received a target letter from Smith, indicating that criminal charges may be coming soon.

Criminal charges may also be coming soon in Georgia.

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DeMarco has been open about his contact with FBI agents last spring, with whom he said he fully cooperated. Asked if he has been in contact with Smith’s investigators since he was appointed as special counsel last November, DeMarco replied only with “no comment.”

Gerow said neither he nor Kevin Harley, another member of his firm and a fellow alternate elector, have had contact with any investigators.

Spotlight PA is an independent, non-partisan newsroom powered by The Philadelphia Inquirer in partnership with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review, and WITF Public Media.



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Pennsylvania

Suspect in killing of woman in Pa. motel in custody in N.J., cops say

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Suspect in killing of woman in Pa. motel in custody in N.J., cops say


A suspect in the homicide of a woman in Bensalem, Pennsylvania is in custody at the Trenton Police Department, police said Wednesday afternoon.

The suspect and victim’s identities have not been made public.

The Bensalem, Pennsylvania police and the Buck County District Attorney’s Office said in a statement that officers found a woman dead at the Sleep Inn & Suites, on Street Road, early Wednesday. They did not detail the circumstances of her death.



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Shapiro threatens to pull Pennsylvania out of PJM over electricity prices

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Shapiro threatens to pull Pennsylvania out of PJM over electricity prices


Pennsylvania Gov. Josh Shapiro (D) is warning regional electricity grid operator PJM that the state will consider leaving the organization if it doesn’t do more to protect consumers against soaring power prices.

Shapiro’s letter marks a sharp escalation of his dispute with PJM, the largest U.S. wholesale power market and transmission coordinator, serving 65 million people from the Atlantic Seaboard to Chicago.

The risk of more power price escalation “threatens to undermine public confidence in PJM as an institution,” Shapiro said in his letter to Mark Takahashi, chair of PJM’s board of managers.

In a statement Tuesday, PJM said, “We appreciate the governor’s letter and have reached out to his office to discuss next steps.”

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Group weighs potential and peril of performance funding for Pa. universities • Pennsylvania Capital-Star

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Group weighs potential and peril of performance funding for Pa. universities • Pennsylvania Capital-Star


A group of lawmakers, university administrators and the head of the Department of Education heard Tuesday about the possibilities — and perils — of tying public funding of state-related universities at least in part to their performance and students’ academic outcomes.

The Performance-Based Funding Council was created by the General Assembly last summer and tasked with making recommendations on a performance-based funding formula by the end of April. Members include four lawmakers, Interim Acting Secretary of Education Angela Fitterer and three non-voting members from the state-related schools that would be affected: Penn State, Temple University and the University of Pittsburgh. Lincoln University, an HBCU and a fourth state-related university, would not be affected.

Currently, the three state-related schools collectively receive more than $550 million in state funding annually. The move to a performance-based funding formula has been supported by lawmakers from both parties, as well as Gov. Josh Shapiro.

“These legislative hearings offer a unique opportunity to fundamentally reassess how we align public resources and educational outcomes,” said Rep. Jesse Topper (R-Bedford), the council chairperson. “I believe we need to show the public how those resources are used and why — why we invest in higher education.”

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More than 30 states already use a performance-based funding model. According to testimony heard by the council, the most common academic targets in states with performance-based funding models include graduation rates, student retention and degree or credential completion. But a potential formula could also take into account factors like research output, administrative efficiency, and employment rates of graduated students.

While policies vary greatly around the country, about 10% of money sent to four-year schools in states with performance-based funding formulas is based on the targeted metrics, according to testimony by Andrew Smalley, a policy specialist who focuses on higher education at the National Conference of State Legislatures.

But experts warned that coming up with a comprehensive formula can be “daunting.”

“Everyone knows that colleges and universities subject to these formulas find themselves in a bit of a Catch-22,” said Charles Ansell, vice president of research, policy and advocacy at Complete College America, a nonprofit focused on best practices in higher education. “They need funds for their performance and improved graduation rates, but they cannot access funds without demonstrating improvement first.”

One potential solution, another expert testified, could be awarding funds based on improvements at an individual school over time instead of an arbitrary benchmark, like graduation rate, that applies to all schools.

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Experts also warned that some performance-based funding models can exacerbate disparities in educational outcomes between high- and low-income students, and between white and minority students.

“Performance funding is typically tied to advantages for the advantaged students and disadvantages for the disadvantaged,” said Justin Ortagus, an associate professor of higher education administration and policy at the University of Florida. Though he noted that a funding formula can take these pitfalls into account by incentivizing enrollment and degree or certification attainment for students in impacted groups.

Speakers also highlighted the benefits of performance-based funding models. Ortagus noted that they can promote institutional accountability.

It could also provide predictability when it comes to school budgets.

As it stands, Pennsylvania’s method for funding these universities requires a two-thirds vote of the legislature, which has led to months-long delays in the past. Creating a predictable funding formula that would be distributed through the Department of Education would mean future appropriations would only require a simple majority.

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Moreover, lawmakers could use performance metrics to encourage specific educational outcomes. Part of the funding formula, for example, could rely on students enrolling or graduating in programs of study that would lead to them entering high-demand fields in the job market.  

The state could also target specific outcomes based on goals like increasing low-income, veteran or minority student graduation rates, encouraging adult education and incentivizing students to enter high-demand jobs by focusing on particular majors. And the formula can be adapted when new needs or issues arise.

“It’s very common for states to revise these frequently,” Smalley said.

The council expects to hold three more hearings, some at the campuses of affected state-related universities.  Its recommendations are due to the legislature and governor April 30.

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