The New York Times has obtained two internal memos outlining the strategy at play behind one of the 2020 election’s stranger moments: the defeated Republican elector candidates who met and “voted” for Trump in states he hadn’t won. At the time, it was a farcical display and the object of widespread mockery. In Michigan, the pseudo-electors weren’t even allowed into the state capitol on the day in mid-December designated for members of the Electoral College to cast their ballots.

Now, greater scrutiny is being placed on the stunt, which seems to have been more central than was known at the time to Trump’s effort to overturn the election results. The notorious memos from John Eastman relied on them, arguing that Vice President Pence should halt the count based on the supposed existence of multiple slates of electors received from some states. That was never true. The non-electors had submitted certificates purporting to cast electoral votes, but they had not been certified or endorsed by any state government officials, as is required. Nor had any state’s legislature endorsed the Trump slate of electors, another tactic that was attempted but failed.

The two newly uncovered memos, written by lawyer Kenneth Chesebro to Trump campaign attorney James Troupis on November 18 and December 9, are the earliest documents yet found about the thinking behind this plan. And unlike most of the legal arguments advanced by Trump’s team between election day and January 6, these memos are not entirely frivolous. In fact, the plausibility of their interpretations underscore the urgent need to reform the Electoral Count Act and its ambiguities.

Chesebro contended that the Trump electors should meet and vote, not to engage in criminal fraud as some have interpreted it, but rather to simply preserve their claim for Congress to consider at the joint session on January 6. In support of this, he cited a little-known incident from the 1960 presidential election.

That year, John F. Kennedy narrowly defeated Richard Nixon, who was at that time the incumbent vice president. It was an election rife with irregularities and much more plausible claims of fraud than anything alleged in 2020. But Nixon decided not to pursue any disputes over these matters and conceded the race.

In Hawaii, the result was razor-thin, even though the state’s three electoral votes made no difference to the national outcome. Initially, Nixon appeared to have won by 141 votes, and on the day the Electoral College met, Nixon’s electors cast their ballots for him in Honolulu. However, litigation and recounts were still ongoing. Eventually, Kennedy was declared the winner by 115 votes. Kennedy’s electors had also met and voted on Electoral College day. Later, the state issued a new certification proclaiming these Democrats the true electors. The updated certificate was rushed to Washington and arrived on the morning of January 6.

When Congress met, Nixon was presiding in his role as president of the Senate. He was not eager to dispute the point, especially when it couldn’t change the outcome. So he asked for unanimous consent to count Hawaii’s votes for Kennedy, even while averring that he didn’t intend to set a precedent. He was simply being magnanimous and trying to avoid the embarrassment that might have come from appearing to be a sore loser (an attitude he didn’t always stick to later).

When Congress meets to count the electoral votes, there are actually two certificates from each state that they must consider. The first, the certificate of the electors, is from the state government and identifies who has been appointed as the state’s members of the Electoral College. The second, the certificate of the actual votes, is drawn up and certified by the electors themselves under the terms of the Twelfth Amendment.

The certificate of votes must, per the Constitution, be given on the same day throughout the United States, which Congress has set by law as “the first Monday after the second Wednesday in December.” But here’s where Chesebro found an overlooked loophole in the Electoral Count Act that seems to have been bolstered by the Hawaii case. There’s no explicit provision for a deadline for when the states must certify who their electors are, so Chesebro reasoned that this could be as late as when Congress convened on January 6, even long after the electors were supposed to cast their votes. But in order for Congress to consider a late certification of the electors, there must still be a matching certificate of votes cast on the required day in December.

The Electoral Count Act does speak to the timeline for certifying electors. The “safe harbor” provision provides that if a state solves any disputes over the result by six days prior to when the Electoral College meets, then their submission is supposed to be immune from objections (or at least some kinds of objections) in Congress. This has been treated as a de facto deadline, including most famously by the Supreme Court in Bush v. Gore, which cited the looming safe harbor date as a reason to halt the recount in Florida.

However, the safe harbor rule isn’t a deadline per se. States have sometimes certified their electors later and Congress still counted them. Like so much of the Electoral Count Act, the law is also ambiguous, with disputes over its scope and interpretation, such as exactly what objections it’s supposed to preclude Congress from considering. In 2020, Congress considered objections to Arizona and Pennsylvania even though both states had certified their electors on time. Wisconsin’s submission was after the safe harbor deadline, but it was still counted, and the attempted objection failed to get the needed senator to cosponsor it.

Nowhere does current law actually specify an absolute deadline after which states may not certify the identity of their electors, even though common sense would indicate that the latest possible day is when the electors are supposed to perform their duties in December.

It gets even worse. Congress ignored the fake 2020 electors, which is the right constitutional result. But the Electoral Count Act, in its notoriously confusing 3 U.S.C. § 15, instructs the vice president to open and acknowledge not just real certificates but “all … papers purporting to be certificates of the electoral votes.” By ignoring them, Pence and Congress were following the Constitution, but they probably did violate the terms of the ECA. The same provision would even seem to cover the joke certificates sent to the National Archives by random individuals with no expectation that they’ll be taken seriously.

To be clear, even under the existing ECA, these pseudo-certificates would not have been eligible for consideration and counting because the claimed electors were not certified by the states. Still, that they were arguably supposed to be acknowledged at all is a glaring flaw, as is the lack of a clear deadline for the states to certify their electors. And if Congress has felt free to ignore some parts of the ECA in the past, there’s no guarantee that a determined majority couldn’t take up and act on false electors in the future, even without proper certification.

There was no good-faith argument that the 2020 results from any of these states would or should be changed after the Electoral College voted. Though Biden won several states narrowly, in all of them he beat Trump by margins in the tens of thousands of votes, orders of magnitude beyond what has ever been changed by a recount or post-election litigation. The fake electors strategy was a shameful attempt to subvert the Constitution. But the fact that Trump’s team was able to identify plausible legal arguments for such a gambit is also a shocking indictment of the current law.

Electoral Count Act reform, which is now under active consideration in Congress, should adopt a clear deadline: the states must certify their electors no later than when the Electoral College meets. Submissions with no legal basis, like Trump’s fake 2020 electors, should be ignored altogether and receive no acknowledgement from Congress. Nobody should ever again be under the illusion that play-acting as if they’d won has any prospect of changing the outcome.