Oversight Project Memo: Further Legal Basis for President Trump’s Pardon of Contingent Electors and Affiliates

MEMORANDUM

DATE: November 10, 2025

TO:  The American People

FROM: The Oversight Project:  It’s Your Government

SUBJECT: Further Legal Basis for President Trump’s Pardon of Contingent Electors and Affiliates

 

Introduction

President Donald J. Trump’s Pardon of contingent electors and others who engaged in good faith challenges to the 2020 Election was a body blow against weaponization and a return to normalcy.  Before the Left’s relentless efforts to criminalize any dissent surrounding the flawed 2020 Election, good-faith election contests were a feature, not a bug of our system of Government.  The Left’s assault on these Pardons—and on Pardon Attorney Ed Martin’s role in seeing them through—has already begun.  The following Memorandum provides even more support for these Pardons.  It does so by demonstrating the overwhelming historical and legal support undergirding the challenges to the 2020 Election and deployment of contingent electors.  This Memorandum also explains that it is precisely because the selection of electors involves intertwined questions of Federal and State law and authority that the Pardons undermine the remaining weaponized State prosecutions.

 

The Organization of Contingent Slates of Electors Is Consistent with the Constitution, Applicable Law, and Longstanding History and Tradition

By mid-December 2020, numerous legitimate challenges to the conduct and outcome of the 2020 Presidential Election remained unresolved.  Under these circumstances, preparing contingent slates of electors and having those electors meet and cast votes was consistent with a longstanding and rich procedural tradition.  This procedure was designed to allow the ultimate decision makers in the Courts and Congress to have the ability to continue to adjudicate pending challenges and award the relevant Electoral Votes following the results of those challenges.  And of course, slates of contingent electors also preserve the then-extant power of Congress to find a failed election in a constituent State and reject all proposed votes from that State.

 

The Legal Framework for Electors

The selection of Electors in 2020 involved a complex web of constitutional and statutory frameworks.

At its most basic level, the United States Constitution demands that each State appoint Electors as directed by its legislature.  U.S. Const., art. II, § 1, cl. 2; see also McPherson v. Blacker, 146 U.S. 1, 35 (1892) (holding that this clause confers plenary power to the State legislatures in the matter of the appointment of electors); Fitzgerald v. Green, 134 U.S. 377, 379 (1890) (“By the constitution of the United States, the electors for president and vice president in each state are appointed by the state in such manner as its legislature may direct.”).  This mandate includes the requirement that the several States pass laws for the selection, balloting, and contest of Electoral Votes, but by design, lacks specificity and uniformity.  U.S. Const., Art. II, § 1, cl. 2.  This appears to be one of only three Federal mandates regarding elections that the U.S. Constitution imposes upon the States.[1]

The  Constitution requires each state’s electors to vote and transmit a certified vote to the President of the Senate, but offers no guidance if such certification is challenged.  Id. at Amend. XII. Rather, it only provides (somewhat cryptically) that “[t]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”  Id.

The Supreme Court has been clear that “[t]he presidential electors exercise a federal function in balloting for President and Vice-President, but they are not federal officers or agents any more than the state elector who votes for congressmen.  They act by authority of the state that, in turn, receives its authority from the federal constitution.” Ray v. Blair, 343 U.S. 214, 224–25 (1952); accord Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934); United States v. Manning, 215 F.Supp. 272, 286–87 (W.D. La. 1963) (3 judge District Court) (Wisdom, Circuit Judge).  Thus, to be sure, electors—including any alternate slate of electors—act under State authority as officers of the State; they are not Federal officers. See, e.g., Chiafalo v. Washington, 591 U.S. 578, 588–91 (2020); Ray, 343 U.S. at 224–25; Fitzgerald v. Green, 134 U.S. 377, 379–80 (1890); United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).  However, because the electors are discharging a Federal function, there undoubtedly is Federal judicial (and legislative) jurisdiction to finally judge and resolve matters arising from the electors’ actions—rendering all such questions of law as ultimately Federal (rather than state) law questions.  See, e.g., Moore v. Harper, 600 U.S. 1, 34–36 (2023); id. at 38–39 (Kavanaugh, J., concurring); Bush v. Gore, 531 U.S. 98, 120 (2002) (Rehnquist, C.J., concurring).

In addition, it has long been held that the Federal Government has the power to “protect the federal government” via “regulating third parties involved in presidential elections.”  Mi Familia Vota v. Fontes, 129 F.4th 691, 740 (9th Cir. 2025) (Bumatay, J., dissenting); accord Anderson v. Celebrezze, 460 U.S. 780, 794–795 (1983) (“[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.  For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.” (footnote omitted)); Burroughs, 290 U.S. at 545 (“The President is vested with the executive power of the nation.  The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated.”).  In that respect, there also is undoubtedly a Federal function vested in Federal officials to “ensure the integrity and proper administration of the federal elections.”  United States v. Trump, 603 U.S. 593, 626–27 (2024).

Here, the contingent electors were executing a “federal function” in an area where Federal law and adjudicatory bodies ultimately control.  They are both subject to Federal jurisdiction and protected from second-guessing as to the parameters of that federal function executed by State actors under the Supremacy Clause.  See, e.g., Cunninham v. Neagle, 135 U.S. 1, 69–75 (1890) (immunity from State interference with exercise of Federal duties); cf., e.g., United States v. Shipp, 214 U.S. 386, 411–12 (1909) (Orig.) (prisoner whose execution under State law was stayed pending resolution of his Federal habeas claim was held by local sheriff “as a Federal prisoner” and thus sheriff was fully subject to authority of Federal court and obedience to its writ).  Electors, including any alternate slate of electors, violated no clearly established rights, but rather reasonably preserved the clearly established suffrage rights of the citizens of the States they served pursuant to their execution of a clear Federal function.[2]

It follows from the foregoing that the electors, to include any alternate slate of electors, were authorized by law, if not required, to exercise discretion in carrying out their electoral functions, and it is in the public interest to encourage the vigorous exercise of such official authority and responsibility as the electors.  Cf. Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity for federal officers).

 

Effects of Presidential Pardons on State Offenses Dependent on Federal Law.

Although the President may only pardon for federal offenses, it is clear that a State may not itself punish for a Federally pardoned offense lest it violate Federal supremacy.  See, e.g., Carlesi v. People of the State of New York, 233 U.S. 51, 57 (1914).  In determining whether a State violates this test is a question of “fixing the nature and character” of the State action, and thus, in at least one such case, the federal pardon was “offered in evidence.”  Id. at 56–57.  This principle extends to when the state offense turns (at least in part) on the application of Federal law, like those here.  The States cannot go behind the fact of the pardon of the federal offense or conduct.  See, e.g., Effects of a Presidential Pardon, 19 Op. O.L.C. 160, 167 (1995) (Presidential pardon relieves State firearm disabilities that attach solely from the Federal conviction).  Thus, by way of example, the President’s Pardon makes clear that contingent slates of electors were not in any way false, misleading, or otherwise inaccurate as a matter of federal law.  Because Federal law and supremacy control as to those points, a state charge alleging that contingent electors were somehow “forgeries” falls.  One cannot forge under state law a document that is governed by Federal law and in which the President has, by pardon, deemed authentic.

 

Mechanics Applicable to the 2020 Election

The United States Constitution states that Congress shall begin its session on January 3rd and Presidential terms shall begin on January 20th, prior to the 20th Amendment, Congress met the first Monday in December and Presidents and Vice Presidents were sworn on March 4th.  U.S. Const., Amend. XX; Prior to the 20th Amendment, under the U.S. Constitution Article I, Section 4, Clause 2 required Congress to meet on the first Monday in December, with March 4th  being the first date of the new government.  See U.S. Const. Amend. XX; Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 117–18 (2005).

Congress passed the Electoral Count Act of 1887 (“ECA”)  with the intention of clarifying the constitutional provisions and precedents which had led to confusion in prior presidential elections, most notably, the 1876 Presidential Election between Rutherford B. Hayes and Samuel Tilden.  The ECA was the law on the books on November 3, 2020.  That said, scholars of all stripes have long questioned whether the ECA was constitutional.[3]

The ECA stated that Electors must be appointed on Election Day, which is fixed as “the Tuesday next after the first Monday in November” (November 2–8).   3 U.S.C. § 2 (1948), repealed by, Pub.L. 117-328, Div. P, Title I, § 102(a) (Dec. 29, 2022).  It provided that the States that “failed to make a choice” on Election Day could choose electors on a subsequent day, vaguely defining what it means for an election count to “fail,” and thus leaving the States to define the term inconsistently.   Id. at §§ 2, 7, repealed and modified by, Pub.L. 117-328, Div. P, Title I, §§ 102(a), 106 (Dec. 29, 2022).

The ECA in turn required that the Electors cast ballots for certification and immediate transmittal on “the first Monday after the second Wednesday in December” (December 13–19). Id. at § 5, modified by, Pub.L. 117-328, Div. P, Title I, § 104 (Dec. 29, 2022).  The ECA encouraged the States to appoint the official slate of Electors six days prior to Balloting Day, referred to as the “Safe Harbor Day” provision (id.), leaving only 35 days to resolve any electoral controversies before electoral ballots are cast and slates submitted.  See generally id. at § 1, et seq.  But at the same time, it provided no direction or guidance for the States and their Electors in the event of a challenge to election results extending beyond the Safe Harbor or Balloting Days.  This omission sowed considerable confusion.  

The ECA required all Electoral Votes to be tallied by a joint session of Congress on January 6th.  Id. § 15, modified by, Pub.L. 117-328, Div. P, Title I, § 109 (Dec. 29, 2022).  That date is the only “final” date that matters for the purposes of counting Electoral Votes.  See, e.g.,  Bush, 531 U.S. at 143–44 (Ginsburg, J., dissenting) (“But none of these dates has ultimate significance in light of Congress’ detailed provisions for determining, on ‘the sixth day of January,’ the validity of electoral votes.”); Laurence Tribe, eroG v. hsuB and Its Disguises:  Freeing Bush v. Gore From Its Hall of Mirrors, 115 Harv. L. Rev. 170, 265–66 (2001).

As to the mechanics of counting the Electoral Votes, the ECA provided that only votes which are “lawfully certified” and “regularly given” should be counted.  These terms are legally vague and contemplate the legal possibility of more than one slate of Electors from a given State.   Id. at § 15 modified by, Pub.L. 117-328, Div. P, Title I, § 109 (Dec. 29, 2022).

The foregoing operation of the ECA has been described by scholars and a Democrat controlled congressional committee as “turgid,” “repetitious,” and unclear in its directions, definitions, and remedies.  See, e.g., Siegel at 543; Comm. on House Admin. Majority Staff, Report on the Electoral Count Act of 1887: Proposals for Reform at 7 n.51 (2022) (“House Admin. Report”).  This confusion and ill-drafting was only compounded by the ratification of the 20th Amendment to the U.S. Constitution, which interacted with the ECA to have the (presumably) unintended consequence of significantly compressing the timeframe in which election results could be challenged by months. See U.S. Const., Amendment XX; 3 U.S.C. § 1, et seq.; see also House Admin. Report at 7 (recounting timeframe compression).

 

Historically, Courts Have Not Been the Sole Arbiters of Elections

There is a common misconception that elections can only be challenged in the Courts.  Not so.  Since the foundation of the Republic, there has been sustained dispute over who in the Congressional Joint Session has authority to “count” and thereby adjudicate Electoral Votes.  See, e.g., Siegel at 551.  The view that the text of the Constitution, combined with early practice, empowers the Vice President to decide these questions has always commanded considerable legal weight.  See, e.g., Bruck Ackerman & David Fontana, Thomas Jefferson Counts Himself Into the Presidency, 90 U.Va. L. Rev. 551, 630–34 (2004) (“Ackerman & Fontana”); Siegel at 552, 637–39, 646–48; House Admin. Report at 1 n. 139.  Thus, it has long been settled law that resolution of disputes over presidential elections and electoral vote counting is not merely the province of the Court, but can and are also adjudicated in state legislatures, before federal officials, and before Congress. Siegel at 552 (“Electoral vote counting is a remarkably important and sustained example of nonjudicial, constitutional interpretation.”); Subcomm. On Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 521-22, 533 (1877) (collecting congressional adjudications up to 1877).

 

Historical Controversy Involving the Electoral College

The Electoral College has been the source of controversy on many occasions over the course of our Nation’s history.  See, e.g., House Admin. Report at 2.  One thing is clear from this history—what transpired in the 2020 Presidential Election was not only non-controversial, but had a robust historical pedigree.

  • In 1797, there had been considerable controversy in the news as to whether Vermont’s Electoral Votes were properly cast (they were). See Ackerman & Fontana at 568–78.  When the votes were counted with Vice President John Adams in the Chair, it was recorded that after reading the count of the tellers, “[t]he President of the Senate then sat down for a moment, and rising again, thus addressed the two Houses” and declared the electoral results.  at 580 (citation omitted).  President Adams did not do this in a prior count, and the import of his action was clear—he was allowing time for a challenge to be raised to Vermont’s Electoral Votes.  Id. at 580–81.
  • In 1801, Vice President Thomas Jefferson, serving as President of the Senate during the joint session of Congress called to decide the Presidential Election of 1800, made the unilateral determination to count facially invalid Electoral Votes from Georgia for himself. at 600–03.  By all available accounts, President Jefferson did so in a summary manner designed to prevent any Member from raising a contemporaneous objection.  Id. at 604–10.[4]
  • Congresses, at times, could not agree on whether “new territories” were States and thus deserved Electors. House Admin. Report at 3 n.14.
  • The whole number of the Electoral College was reduced when an individual elector failed to vote. n.15, n.18.
  • In 1857, a snowstorm prevented the Wisconsin Electors from voting, yet the “votes” were passed on to the President of the Senate, who ruled any objections out of order and counted them anyway. at 3 n.23.  The matter was debated for days, and the question was never resolved, even though “most Members agreed that Wisconsin’s votes should not have been counted”.  House Admin. Report at 3; see also Seigel at 634.  But again, there was no dispute that Congress had the power to resolve these sorts of issues.
  • In 1865, Vice President Hannibal Hamlin did not present electoral certificates from Louisiana and Tennessee pursuant to a Joint Resolution excluding votes from Confederate States. See Seigel at 553.  The Vice President indicated he would submit the matter to Congress if pressed, but no one pressed the point.  Id.
  • In 1869, an issue arose in which the count was governed both by a Joint Rule and a special rule designed to address “expected problems with Georgia’s electoral vote.” Seigel at 644.  When the expected objection came, the Senate President appeared to consider the objection under the Joint Rule, which would require rejecting Georgia’s returns because the House had sustained the objection.  But the Senate President decided to count the Georgia votes in any event, apparently concluding that the special rule applied.    The Senate President then refused to allow an appeal from his ruling, leading to “great uproar, and days of acrimonious debate.” Id. at 634, 647–48.
  • In 1873, the U.S. Senate authorized a committee to investigate election irregularities in Arkansas and Louisiana. See House Admin. Report at 4 n.29.  Congress accepted some returns and rejected others on technical and substantive grounds.  at 4 n. 28.  In the case of Louisiana, Congress confronted dueling slates of Electors, one “certified by the Governor and the other by the Secretary of State”.  See Seigel at 581.  But the official canvass was delayed due to a Federal court enjoining “counting the popular vote because of claims of racial discrimination.”  Id.  This litigation had not concluded by December 4, 1872, the set day for Electors to vote.  Id.  Both slates of Electors were rejected because both Houses of Congress agreed that neither of the competing slates held office as Presidential Electors as a result of a ‘lawful’ canvass on December 4, the date elector ballots had to be cast.”  Id.
  • In 1876, the Presidential election between Republican Rutherford B. Hayes and Democrat Samuel Tilden remains the nation’s most chaotic electoral count in American history, where Congress by statute appointed a commission to decide each “true and lawful electoral vote” after dueling slates of Electors were submitted in four different States. See House Admin Report at nn.31–33.  Notably, in the run-up to the comprise Commission, President Hayes’ camp took the position that the President of the Senate (a Republican) had unilateral authority to adjudicate the votes.  See Ackerman & Fontana at 635–36; William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876 99–100, 115 (2004).
  • In 1889, after the ECA became law just two years prior, Oregon submitted an alternate slate of Electors to the President of the Senate. at 5 nn. 37–38; see also Siegel at 638.
  • In 1961, Hawaii submitted multiple slates of Electors. See House Admin. Report, at 5 nn. 39–40.  “Republican electors were certified by the Acting Governor on November 28, 1960.  A recount was ordered to begin on December 13, 1960.  Both Democratic and Republican electors met on the appointed day to cast their votes.  On January 4, 1961, the newly elected Governor certified the Democratic electors.  The certification was received by Congress on January 6, the day the electoral votes were counted.”  Bush, 531 U.S. at 127 n.5 (Stevens, J., dissenting).  Then-Vice President Richard Nixon announced that “[t]he Chair desires to make a statement.  The Chair has received three certificates from persons claiming to be the duly appointed electors from the State of Hawaii.  The Chair will hand these certificates one at a time to the tellers who will read the certificates and the attached papers in full.”  107 Cong. Rec. 287, 289 (Jan. 6, 1961) (Statement of Vice President Nixon).  Vice President Nixon then obtained unanimous consent to count the last set of Electors for President Kennedy, stating that “[i]n order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.”  at 290.
  • In 2001, several Florida Congressmen objected to Florida’s Electoral Votes, but could not force a contest of those votes because they had no Senate sponsor of such a contest. House Admin Report at 6 n.43; see also 107 Cong. Rec. H31-45 (2001).
  • In 2005, Members from both chambers objected to Ohio’s Electoral Votes, forcing the chambers to separate and debate the objection under the ECA. Both Houses rejected the objection, and Ohio’s votes were counted.  House Admin. Report at 6 n.44; see also 109 Cong. Rec. H84-129 (2005).
  • In 2017, multiple Representatives objected to numerous States’ votes but lacked a Senate cosponsor to force a contest of the Electoral Votes.   House Admin. Report at 6 n.45; see also 163 Cong. Rec. H185-190 (2017).
  • In 2021, members of both chambers objected to numerous states’ votes, but the objections were resolved, and the votes were counted. House Admin. Report at 6 n.46.

 

[1]  As for the other two mandates, Article I, Section 4 requires States to have laws regarding the “Times, Places, and Manner” of Federal elections, U.S. Const., Art. I, § 1, cl. 1, while Amendment XVII demands that state governors replace Senate vacancies via writs of election, id. amend. XVII.

[2] This statement of fact is somewhat derivative in that every electoral vote was counted in the 2020 election.

[3]  See, e.g., Chris Land & David Schultz, On the Enforceability of the Electoral Count Act, 13 Rutgers J. of Law & Pub. Pol’y 340 (2016); Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 544 n.13 (2004) (“Seigel”) (collecting authorities).

[4]  This was the leading precedent for Vice President Mike Pence, as President of the Senate under Article II, Section 1 of the U.S. Constitution, to have asserted sole authority to open and count electoral votes, potentially arguing that provisions of the Electoral Count Act (3 U.S.C. §§ 5, 15) were unconstitutional.

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