Hawaii’s duplicate electoral votes were the result of a closely contested election
- When Hawaii voted in a U.S. presidential election for the first time in 1960, the initial tally put Richard Nixon just 140 votes ahead of John F. Kennedy. A recount was conducted, and was still ongoing on December 19, 1960, the day that presidential electors were required by law to cast their ballot.
- The governor certified Nixon’s slate of electors, given his lead in the initial count. But because the race was essentially a toss-up at that point, Kennedy’s campaign submitted their own slate of electors. The recount eventually revealed that Kennedy had actually won the state by 115 votes. The circuit court then ruled that the state’s three electoral votes should go to Kennedy, and then-Vice President Nixon counted them in the certification of electoral votes before Congress on January 6, 1961.
Trump’s alternative electoral voters were not the result of close races or ongoing recounts
- Trump and his allies, by contrast, attempted to appoint electors in 7 states where he had undeniably lost. Trump lost New Mexico, one of the states involved in the scheme, by nearly 100,000 votes. In Georgia, two vote counts and an audit proved that President Joe Biden won by about 12,000 votes.
- Trump’s team did not submit the alternate slates of electors solely because they believed a state would flip in their favor, as was the case with the alternative Kennedy electors in 1960. According to the Associated Press, pro-Trump lawyer Kenneth Chesebro wrote in a December 13, 2020 email that the plan “‘was not to use the fraudulent electors only in the circumstance that the Defendant’s litigation was successful in one of the targeted states.’ Instead, he wrote, ‘the plan was to falsely present the fraudulent slates as an alternative to the legitimate slates at Congress’s certification proceeding.’”
- The purpose of Kennedy’s alternative voters was simply in the case of a recount coming down in their favor, as it was a legitimate possibility. The goal of appointing alternate slates of electors in the 2020 election was not just in the hopes that one of Trump’s bogus lawsuits would result in any of the states flipping, but was also part of the plan to strong-arm former Vice President Mike Pence and members of Congress to interfere with the certification of Biden’s victory.
Under the circumstances of the Hawaii case, the court-ordered recount created reasonable uncertainty surrounding the vote total, giving the Kennedy electors a justifiable basis for their production of a Kennedy certificate. The 2020 Georgia Trump electors, on the other hand, met and signed their fraudulent certificate on December 14, seven days after the results were recertified (for the second time) on December 7. The governor—a Republican—never approved. Furthermore, Nixon’s initial Hawaii victory (pre-recount) was by a margin of only 141 votes, well within the realm of possibility for a recount to change; Biden’s total, on the other hand, was more than 12,000 votes (and still 11,779 after the second recount) greater than Trump’s, a much larger advantage unlikely to be overturned by a recount. [Brookings Institute, 11/2022]
In response to Trump’s third indictment, right-wing media have returned to the theory that Kennedy set a precedent for submitting alternative electors
The 1960 dueling slates of electors do not provide justification for Trump’s attempts to appoint fake electors in states where he lost by significant margins, but right-wing media insist that the decades-old case vindicates him:
- On Fox News’ The Five, co-host Jesse Watters responded, “Well, they did it in Hawaii in 1960. They had an alternate slate. It’s fine, it’s been done before,” to guest Harold Ford Jr.’s assertion that “no president had done that before.” [Fox News, The Five, 8/3/23]
- While talking about the fake elector scheme on Newsmax, Newsmax contributor Joe diGenova argued, “John Kennedy did this in 1960 in Hawaii.” DiGenova then claimed that Kennedy “did exactly the same thing that Donald Trump did.” [Newsmax, The Chris Salcedo Show, 7/20/23]
- One America News’ Sam Valk tried to claim that criticism of Trump’s scheme “fails to mention the 1960 election when Democrats in Hawaii signed onto alternate electors after Republicans certified victory in the state for Richard Nixon against John F. Kennedy.” He continued to argue that “the electors were eventually returned to the state to confirm certification and Democrats managed to get their alternate electors certified, flipping the state.” Valk himself fails to mention that a legitimate recount is what flipped the state in the 1960 election. [OAN, One America News, 7/23/23]
- Trump ally Alan Dershowitz used the Hawaii example in his claim that Trump was merely challenging a contested election, saying, “I don't think we should be criminalizing efforts to challenge the election. Elections have been challenged since Thomas Jefferson, Tilden Hayes, obviously Bush versus Gore, the 1960 election was challenged in Hawaii. We’ve had these election challenges repeatedly, and they're part of our system.” [OAN, One America News, 7/27/23]
- Attorney Sam Dewey appeared on Fox News to argue that “An alternate slate of electors is how you preserve a legal challenge. Go back to the election of 1960. Hawaii comes in for Nixon. There's a legal challenge. There to the date the electors vote. The lawyers go, ‘What do you do?’ The Kennedy campaign appoints alternate electors, wins the legal challenge. Couple of days before congress meets, those electors' votes are counted. That's what happened in the '76 controversy. Appoint alternate electors. There's nothing fraudulent about that. That's a lawyer preserving a claim.” [Fox Business, The Evening Edit, 8/1/23]
- Newsmax’s Bob Sellers briefly mentioned the Hawaii case on American Agenda without any context. He simply stated, “I'm hoping that we're going to talk about 1960 in Hawaii, where they had a contested election, and they first said they voted for Nixon. Then they said JFK, then they then JFK -- they sent two sets of electoral votes to Washington. So this is something that's going to come up in this case as well.” [Newsmax, American Agenda, 8/2/23]
- Newsmax’s Greg Kelly played a clip of Trump attorney John Lauro arguing that the Hawaii case set a precedent and added, “President Trump not only had the right to raise these questions, but he had a duty – a duty – to raise these questions, and he was fully authorized as the president of the United States to do so.” He added that Lauro “is totally right about Hawaii in 1960, a very close election. They didn't know who won. So they sent two slates of electors to Washington, D.C. It has happened before, and you're allowed to talk about this stuff. This is still America and I am allowed to point out that I've got my own concerns about the fairness of the 2020 election.” [Newsmax, Greg Kelly Reports, 8/2/23]
- The Gateway Pundit wrote that there is “Legal Precedent” behind the “Alternate Electors” Trump appointed. The article claims that “legal precedent shows not only did the alternate electors not violate law, they actually took proper Constitutional action in submitting their certificates amidst a contested election, according to the Judge’s ruling in the 1960 Hawaii election dispute between John F. Kennedy and Richard Nixon.” [The Gateway Pundit, 7/26/23]
- Newsmax published an article titled “Neither Trump's Election Challenge nor His Electors Were Illegal.” The outlet claimed that “the decision by Hawaii Democrats to deploy alternate electors in that race is being cited as a precedent for other states that took similar steps in 2020. No one sought to indict these electors or prosecute Kennedy over the matter.” [Newsmax.com, 7/24/23]
- PJ Media claimed that the Hawaii incident took place in a “different era,” which is why “no one tried to criminalize the alternate slate of electors presented by the Democrats. No one accused either side of fraud. And no one made a big stink of the GOP challenge to Hawaii’s results. It was recognized as a completely legal, prudent way to maintain the integrity of the election.” [PJ Media, 7/21/23]
- PJ Media also claimed that Democrats are ignoring “former electoral hypocrisy.” According to the outlet, “just as the Democrats went from screeching about an illegitimate election in 2016 to condemning ‘election denial’ as a shocking evil in 2020, the Democrats appear to have forgotten how Democrat John F. Kennedy used alternate electors in the 1960 presidential election.” [PJ Media, 7/21/23]
- Breitbart stated that JFK set a precedent for appointing alternate electors in 1960. The article claims that “Democrats themselves used this strategy in the 1960 election, a close race between Vice President Richard Nixon (R) and Sen. John Kennedy (D-MA).” [Breitbart, 7/18/23]
- Breitbart senior editor-at-large Joel Pollak posted that “Kennedy used alternate electors in Hawaii in 1960. Trump only did what Democrats have done before. All of these prosecutions are abuses of the justice system that will have long-term consequences for the country.” [Twitter/X, 7/18/23]
- Fox News contributor Ben Domenech posted, “The danger with prosecuting ‘fake’ electors: future legal consequences for signing on to the wrong side in disruptive situations like Florida 2000. Imagine if Gore had prepped a slate as Kennedy and Nixon did in Hawaii in 1960.” [Twitter/X, 7/18/23]
- Turning Point USA founder Charlie Kirk claimed on his show that “alternate electors had legal precedent of being selected and chosen in the Kennedy/Nixon 1960 election.” He continued, “So they were trying to overthrow the government by sending in alternate electors? How does that work exactly? The Vice President could have sent it back to the states and the judge in 1960, who selected the alternate electors in the Hawaii controversy of Kennedy and Nixon, said explicitly if you had not have sent those electors it could not have been chosen. The judge said that in 1960. The 1960 election. If you had not have sent them, we would not have been able to select them.” [Real America’s Voice, The Charlie Kirk Show, 8/2/23]
- Mark Levin claimed on his radio show that Trump’s alternate electors “weren’t fake” because of the “close races.” He argued, “That wasn't illegal. It wasn't unconstitutional. They weren't fake. They were close races. They weren't resolved, at least to the belief of one party or the other. Both sets are sent and Congress has to make the decision. 1960 – two slates of electors were submitted by Hawaii because the election results first went to Nixon and then went to Kennedy. So they sent both slates, Republican and Democrat, to Congress to sort out.” [Westwood One, The Mark Levin Show, 8/2/23]