The Eastman memos were a set of two documents written by John Eastman used to push a fringe legal theory that the President of the Senate has the unilateral authority to count, deliberate over, and reject certified state electors and electoral votes. [1]
The first memorandum outlines a scenario for January 6th in which the certification of the 2020 election is postponed giving republican controlled state legislatures time to formally certify an alternative slate of electors granting Donald Trump the presidency. [3]
The memorandum starts by supposing that 7 states transmit dual slates of electors. [4] Despite the memo’s premise, no official state bodies transmitted legitimate competing slates. Only non state-certified alternative slates were submitted, which courts later found held no legal status. These slates were part of the false electors plot, which involved coordinated efforts in multiple states to submit falsified certifications to the National Archives and Congress.
The memorandum then proceeds to justify the powers of the President of the Senate to control the count, and certification of state electors. Eastman does this through the Electoral Count Act and the 12th Amendment. [5]
The memorandum then closes with a 6 step plan for how to allow Mike Pence acting as the President of the Senate to certify the election for Donald Trump. [6]
The second memorandum largely repeats the same claims as the first about the powers of the President of the Senate as well as handling different scenarios for Pence on January 6th. The second memorandum also outlines more concrete claims of voter fraud to justify the usage of the powers that were argued in the first memorandum.
The first main section of the second memorandum outlines the alleged illegal conduct by election officials in the 2020 presidential election as well as including relevant lawsuits related to those claims.
| State | Lawsuit | Outcome |
|---|---|---|
| Georgia | Trump v. Kemp | Trump Loss (Denied) |
| Pennsylvania | Trump v. Boockvar | Trump Loss (Dismissed) |
| Wisconsin | Trump v. Biden | Trump Loss (Ruled for Defendants) |
| Trump v. Wisconsin Elections Commission | Trump Loss (Dismissed) | |
| Michigan | n/a (no lawsuits listed) | |
| Arizona | n/a (no lawsuits listed) | |
| Nevada | n/a (no lawsuits listed) |
TODO: This needs to be more fleshed out with additional citations.
John Eastman claimed that Georgia's Secretary of State, Brad Raffensperger, unconstitutionally altered election procedures by entering into a settlement agreement with the Democratic Party that changed how signature matching on absentee ballots was conducted. [1]
Background ^db2fde
In 2019, Georgia Democrats sued to standardize the state’s procedures for notifying voters if their absentee ballot had a missing or mismatched signature in Georgia Democratic Party v. Raffensperger
In March of 2020, election officials and the Democrats reached a settlement that said election officials will notify voters of signature problems within three days by mail, and if available, by telephone and email. [22] Notably Gov. Brian Kemp was not a signatory to that settlement agreement. [22]
Outcome
Despite the alleged relaxation of signature matching laws by Eastman, the percentage of ballets rejected due to signature discrepancies stayed the same, being 0.15% during the 2018 election (before the settlement) and remaining at 0.15% during the 2020 election. [2]
The courts also found in Trump v. Kemp that the settlement in Georgia Democratic Party v. Raffensperger presided over by William M. Ray II a Republican was lawful. Georgia (lead by a Republican Governor) also did a full bipartisan statewide audit of paper ballots finding no significant discrepancies and ultimately upheld the original counts finding no fraud took place. [3]
John Eastman claimed that there were portable polling stations which drove around and mainly went to democratic areas.
Background
During the 2020 election Fulton county in Georgia purchased and used two mobile voting units which drove around to different areas in the county. [4] Notably after the 2020 election the Georgia legislature banned the usage of mobile voting units aside from in extreme disasters. [5]
Outcome
Georgia’s independent state election board never flagged the mobile units as being problematic. Additionally, looking at the 2020 election compared to the 2024 election.
| Year | Republican | Democrat |
|---|---|---|
| 2020 | 26.16% (137,240) | 72.65% (381,144) |
| 2024 | 27.03% (144,655) | 71.88% (384,752) |
Votes for each party in Fulton county, during the 2020 and 2024 elections. [6]
We can see that the mobile voting units had no noticeable effect on the election outcomes of the 2020 election. Additionally, at the time when they were used the Fulton county mobile voting units were fully legal, it was only with the 2021 Georgia election integrity act that they became illegal. [5]
The judiciary did assign a judge to hear the lower case Trump v. Raffensperger within 3 days of when it was filed. However the case was eventually dismissed by the judge.
The judge presiding, Judge Russell was notably appointed in 1996 by then-Governor Zell Miller, a Democrat. Judge Russel never actually ruled on the merits only dismissing it procedurally. Notably Trump's legal team did not appeal the decision. [7]
John Eastman claimed that Pennsylvania officials colluded with the League of Women Voters suit to eliminate absentee ballot signature checks, then got the Philadelphia Supreme Court to ratify it.
Background
The League of Women Voters' (LWV) federal lawsuit (League of Women Voters v. Boockvar) sought notice and cure for signature issues. Secretary Kathy Boockvar responded on September 11, 2020, with guidance that counties shall not set aside ballots solely for signature mismatches.
This advisory was technically legal under Philadelphia election law (the Secretary interpreted that boards lacked authority to reject by signature alone). The LWV plaintiffs voluntarily dismissed the case the same day, and the court closed it on October 16, 2020. [8]
Outcome
The litigation ended when the guidance made the claim moot. Boockvar then took the issue to the Pennsylvania Supreme Court in In Re: Nov 3, 2020 General Election. The Court agreed that state law did not allow rejecting ballots for signature mismatches. [9] Justice Kevin Dougherty wrote: "the Election Code does not authorize or require local boards to reject" ballots based solely on signature comparison. The ruling was unanimous. Thus, the Court effectively upheld the Secretary's guidance. [9]
It is notable though that the Pennsylvania supreme court is made up of a Democratic majority. However the majority opinion was accepted 6–1 with one of which Chief Justice Thomas G. Saylor being a Republican and despite not accepting the majority opinion Justice Sallie Mundy the other Republican also concurred with the outcome (for Boockvar) just not the majority opinion.
The collusion that Eastman alleged in the claim was unproven, and he failed to provide any evidence of such. Additionally, the rejection rate of mail in ballots between the 2016 election and the 2020 election increased by +0.3% despite the relaxed signature verification rules.
John Eastman claimed that the Philadelphia Supreme Court eliminated poll-watching rights by reducing observers to one person at an entrance.
Background
In City of Philadelphia Board of Elections v. Boockvar, the Trump campaign asked to allow more campaign observers in canvassing sites. The Commonwealth Court had ordered expanded access, but the Philadelphia Supreme Court (Republicans dissenting) vacated that order and reinstated the trial court's one-person-per-candidate rule. [10]
Outcome
The Supreme Court held (5–2) (with the Republican judges dissenting) that the trial judge had correctly required only one representative per party inside the canvass site. The majority opinion affirmed that existing statute and regulation were satisfied by the election officials' set-up. [10]
John Eastman claimed that the Philadelphia Supreme Court eliminated requirements for proper completion of absentee ballots.
Background
On November 23, 2020, in Trump v. Boockvar, the Court ruled that missing date/address on a ballot certificate does not void the vote. [11]
Outcome
Justice Christine Donohue (Republican judges dissenting) held that under the Election Code these omissions are merely directory and cannot by themselves disqualify a ballot. This was a 5–2 decision with Republican judges dissenting. The Court allowed counting of ballots even if voters failed to hand-print the envelope date or address.
John Eastman claimed that Wisconsin's use of unmanned ballot drop boxes violated state law.
Background
Initially, in 2020 the state permitted absentee drop boxes (one per municipality). However, a later court challenge after the election found technical violations. In Teigen v. Wisconsin Elections Commission, the conservative majority held that Wisconsin law did not authorize any drop-box use. [12]
Outcome
In 2022 drop boxes were deemed unsupported by statute. But in 2020 the boxes were used under executive guidance. [23] A post-election bipartisan legislative committee later acknowledged drop boxes were unauthorized, leading to new laws.
An October 2021 legislative audit found no evidence of fraud via drop boxes, only that their use had no clear legal basis (Drop boxes were also video-monitored, which helped ensure integrity.) [21]
John Eastman claimed that organized ballot collection events were illegal under Wisconsin law.
Background
During the 2020 elections, organized "ballot collection" events were held in Dane and Milwaukee counties. Voters brought their own absentee ballots to special collection sites (e.g. Milwaukee's "Democracy in the Park" on Sept. 29, 2020). Wisconsin law requires mail ballots be either mailed by the voter or hand-delivered to the clerk's office. These curb side events were not explicitly authorized, so they were legally ambiguous. [13]
Outcome
Lawsuits were filed (e.g. Democracy in the Park, Inc. v. Dane County), but courts did not prohibit the events. In practice, no ballots were distributed by campaign operatives, and no court in 2020 held any collection event illegal.
These events prompted legislative proposals, but official audits (and the Dane County clerk's office review) found no fraudulent ballots. All counted ballots from those events were cast by the voters themselves.
John Eastman claimed that Wisconsin clerks illegally added missing witness addresses to absentee ballot envelopes.
Background
Wisconsin law required a witness signature and address on each absentee certificate. In 2016 and again 2020, the WEC had guided clerks to cure ballets themselves by adding the missing information.
However, on October 3, 2022 (after the 2020 election), a Waukesha County circuit judge permanently enjoined guidance that would allow clerks to "cure" missing witness addresses. The court held that a missing address meant the ballot must be rejected. In January 2024, Wisconsin's Court of Appeals confirmed that conclusion. [14]
Outcome
The law was ultimately interpreted as barring clerks from adding missing addresses. During 2020, some clerks believed they could assist voters (following pre-election guidance), but these corrections were later deemed unlawful.
John Eastman claimed that county clerks improperly encouraged voters to claim "indefinitely confined" status to avoid voter ID requirements.
Background
Dane County Clerk Scott McDonell and Milwaukee County Clerk George Christenson publicly advised voters that, during the COVID emergency, any voter could declare themselves "indefinitely confined" due to illness. This status excuses voters from providing photo ID. [15]
Outcome
These were voluntary guidelines, clerks did not add names to rolls without voter action. The clerks simply told voters the option existed. No evidence emerged of clerks fraudulently marking people as confined. Notably after the election the Legislature changed the rules ending automatic "indefinitely confined" status for many.
John Eastman claimed that Michigan illegally mailed absentee ballots to all registered voters without applications.
Background
For the 2020 general election, Michigan law required voters to request an absentee ballot. The Secretary of State instead mailed applications to all 7.7 million registered voters as a convenience. No completed ballots were mailed unsolicited. [16] ^34b22a
Outcome
Sending applications was legally permitted and aimed at increasing turnout. (The Michigan Supreme Court, upheld broad mailing of applications to all permanent absentee voters). ^2a34ec
There was no court finding of illegal ballot mailings. In litigation, Republican candidates' appeals were dismissed. Official review (the independent Michigan Bureau of Elections) reported no anomalies with mailed absentee ballots. Extensive recounts and audits confirmed the outcome without irregularity. ^2cfdd9
John Eastman claimed that Michigan strategically placed drop boxes in Democratic areas and failed to properly monitor them.
Background
Michigan law requires drop boxes to be distributed "equitably" based on population across a jurisdiction. It does not allow targeting by party. Counties set up drop boxes (e.g. 10 in Detroit) consistent with the law. Additionally, the law requires video surveillance for drop boxes installed after Oct 1, 2020. [17]
Outcome
All drop boxes used in 2020 met state standards or were soon retrofitted with cameras. No court or audit concluded drop boxes were used improperly. Bi-partisan election officials confirmed compliance with the equitable-distribution rule.
John Eastman claimed that Detroit illegally counted ballots in the early morning hours without proper observation.
Background
Michigan law explicitly allows counting of all timely ballots no matter when they arrive, provided the process follows statutory procedures. The Michigan statute permits the local canvassing board to tabulate absentee ballots "in an absent voter counting board" after 7 a.m. on Election Day; there is no prohibition on continuing past midnight. [18]
Outcome
In practice, Detroit's counting continued into the early hours. Michigan law also allows challengers and watchers to remain at the counting board once counting has begun: any election challenger or attendee after processing starts must take an oath and may observe.
In Detroit, bipartisan observers (and the media) were present during the late-night count, and results were live-streamed. A subsequent Michigan Court of Claims judge and the Secretary of State both affirmed that late-night counting complied with law. Official recounts later verified the totals without issue. Thus, counting ballots at 3:16 a.m. or later (as often occurred) was lawful, and no statute required stopping at midnight.
John Eastman claimed that federal courts improperly shortened Arizona's voter registration deadline.
Background
In late 2020, Arizona's law set the registration deadline 29 days before Election Day. Plaintiffs sued to extend it. In American Voters Alliance v. Hobbs, a preliminary injunction briefly extended the deadline to Oct 23. However, the 9th U.S. Circuit Court of Appeals partially stayed that order. On Dec. 3, 2020 the 9th Cir. allowed registrations only until Oct 15. [19]
Outcome
Any "reduction" of the deadline was by court order: the 9th Circuit ultimately trimmed the extension to just two extra days (Oct 5 to Oct 15). There was no change by legislation or executive fiat, only this limited judicial relief.
John Eastman claimed that Nevada illegally used automated signature verification instead of manual inspection.
Background
In 2020 Clark County did employ a computerized signature-matching system ("Agilis") to speed mail ballot processing. Several post-election suits argued state law required human verification. All these lawsuits were quickly dismissed. [20]
Outcome
In federal court, Judge Andrew Gordon on Nov. 6 refused to enjoin the machine, noting ongoing state litigation. No court in 2020 found use of the machine illegal. (Indeed, the plaintiffs in the state cases withdrew after preliminary rejection).
Clark County's tabulation was overseen by bipartisan boards of inspectors, and the Agilis system's output was double-checked. Clark County certified its results with bipartisan agreement, and a 2022 legislative audit found all ballots were properly counted. The certified count was also confirmed by a full canvass and by state certification processes.
However in 2023, the Nevada Supreme Court later held that mail ballots must be checked manually, effectively overruling the use of automated matching.
2: Number of Absentee Ballots Rejected for Signature Issues in the 2020 Election Increased 350% from 2018, archived
3: 2020 Georgian Election Audit
4: Early Voting Starts Today & Fulton Mobile Voting Units Hit the Streets archived
5: Georgia Election Integrity Act of 2021 archived
6: November General Election, November 3, 2020 archived, November General Election, November 5, 2024 archived
7: Trump v. Raffensperger archived
8: League of Women Voters of Pennsylvania v. Boockvar archived
9: In Re: Nov 3, 2020 General Election :: 2020 :: Supreme Court of Pennsylvania Decisions
10: City of Philadelphia Board of Elections v. Boockvar
11: Trump for President v. Boockvar
12: Teigen v. Wisconsin Elections Commission
13: PolitiFact | Was 'Democracy in the Park' illegal?
14: Wisconsin Court of Appeals - White v. WEC
15: PolitiFact | Voters, not clerks, decided who was on "indefinitely confined" list
16: Fact-check: Michigan is not sending absentee ballots to every registered voter
17: MCL - Section 168.761d - Michigan Legislature
18: MCL - Section 168.765a - Michigan Legislature
19: 9th Circuit says extended voter registration deadline ends Thursday
20: Post-election lawsuits related to the 2020 U.S. presidential election from Nevada - Wikipedia
The second main section of the second memorandum outlines how through the Electoral Count Act and the 12th Amendment the President of the Senate has the authority to unilaterally reject state electors and electoral votes. [7]
This section largely covers the same argument as the first memorandum, but with more detail on the legal arguments and the supposed powers of the President of the Senate.
The final section of the second memorandum outlines multiple different scenarios that could play out on January 6th, depending on how Mike Pence acts as the President of the Senate. [8]
The conclusion of the second memorandum is a call to action describing that "this Election was Stolen by a strategic Democrat plan", and that they should no longer be "playing by Queensbury Rules" (a boxing term meaning to play fair). [9]