At least 357 sitting Republican legislators in closely contested battleground states have used the power of their office to discredit or try to overturn the results of the 2020 US presidential election, according to a review of legislative votes, records and official statements by the New York Times.
The tally accounts for 44 per cent of the Republican legislators in the nine states where the presidential race was most narrowly decided. In each of those states, the election was conducted without any evidence of widespread fraud, leaving election officials from both parties in agreement on Joe Biden’s victory.
The Times’ analysis exposes how deeply rooted lies and misinformation about former US president Donald Trump’s defeat have become in state legislatures, which play an integral role in US democracy. In some, the false view that the election was stolen – either by fraud or as a result of pandemic-related changes to the process – is now widely accepted as fact among Republican lawmakers, turning statehouses into hotbeds of conspiratorial thinking and specious legal theories.
These fictions about rigged elections and widespread fraud have provided the foundation for new laws that make it harder to vote and easier to insert partisanship in the vote count. In three states, Arizona, Pennsylvania and Wisconsin, state lawmakers successfully pushed for investigations that sowed doubt about the results and tested the boundaries of their oversight.
And yet the Times’ analysis also shows that these efforts have encountered significant resistance from key Republican figures, as well as Democrats. In most states, the lawmakers who challenged the 2020 results do not yet have the numbers, or the support of governors, secretaries of state or legislative leaders, to achieve their most audacious aims.
They have advanced, but not enacted, legislation that would make it easier for politicians to overturn elections. And it is only a minority of Republican lawmakers who promote the legally dubious view that they – and not the votes of the people – can select the electors who formally cast a ballot for the president in the Electoral College.
Election and democracy experts say they see the rise of anti-democratic impulses in statehouses as a clear, new threat to the health of American democracy. State legislatures hold a unique position in the country's democratic apparatus, wielding a constitutionally mandated power to set the "times, places and manner of holding elections". Cheered on by Mr Trump as he eyes another run for the White House in 2024, many state legislators have shown they see that power as license to exert greater control over the outcome of elections.
In an interview with the Times, Mr Trump acknowledged that in deciding whom to endorse in state legislative races, he is looking for candidates who want state legislatures to have a say in naming presidential electors – a position that could let politicians short-circuit the democratic process and override the popular vote.
Some legislators who were among the most vociferous in their support of subverting the election have tried to use their 2020 efforts as a springboard to higher office, all while still pledging to further remove democratic guardrails.
Doug Mastriano, a Republican state senator from Pennsylvania who won his party’s nomination for governor Tuesday, has pushed the Department of Justice to investigate debunked election conspiracies, has held a legislative hearing with members of Trump’s legal team and has promised to enact new voting restrictions if elected. Mark Finchem, a Republican state representative in Arizona who has pursued the dubious theory of election decertification, is a candidate for secretary of state in that state.
Mr Trump’s defeat was undisputed among election officials and certified by Democratic and Republican secretaries of state, with slates of electors signed by Democratic and Republican governors. None of the recounts or audits altered the outcome. Mr Trump’s department of justice found no evidence of widespread fraud. Mr Trump lost more than 50 of his post-election challenges in court.
Four days before the House of Representatives was set to formally tally the Electoral College votes for Mr Biden, an act long considered purely ceremonial, Trump’s advisers gathered more than 300 state legislators on a Zoom call, according to a report by the House committee investigating the January 6th, 2021, attack on the Capitol.
Mr Trump and his allies pushed for lawmakers to change the certified results sent to Congress. Many experts said such a move would have been unconstitutional.
Days after Mr Trump spoke to lawmakers, members of the Pennsylvania state legislature wrote a letter to Senator Mitch McConnell, then-Senate majority leader, and Representative Kevin McCarthy, Republican leader in the House, asking them to delay certification. On January 5th, 2021, more than 90 legislators from Georgia, Arizona, Michigan, Wisconsin and Pennsylvania sent a letter to vice president Mike Pence asking him to delay the certification of the election.
Mr Trump has continued to try to convince state legislatures that they can “decertify” the 2020 election, a process that has no basis in either the US constitution or state constitutions.
State lawmakers have responded to Mr Trump’s calls for action largely by overhauling voting procedures. Some 34 laws that include restrictions on voting were passed in 2021, according to a review by the Times, and 18 laws were passed this year, according to a report from the States United Democracy Centre, a non-profit group. Some limited drop boxes or mail-in voting. Others put more power over elections in the hands of state legislatures, rather than local election officials or secretaries of state.
In many states, lawmakers’ first step has been to call for outside partisan investigations, often referred to as “audits”, although they do not follow typical auditing procedures or standards.
The hunt for fraud in Arizona accelerated in the days after electors had been certified, and showed how a vocal and determined faction of Republican legislators could force through a deeply destabilising outside election review.
The initial pursuit of fraud would devolve into a year-long fracas between Republicans and local election officials in Maricopa County, home to Phoenix. The Republican Senate hired a shadowy outside company with ties to election conspiracy theories to conduct an "audit", dismissing objections from Republican county officials.
What the “audit” eventually found – that Mr Biden had indeed won Arizona – proved irrelevant to those who had called for it. Mr Trump and his allies focused instead on perceived irregularities in the voting process, such as 23,344 mail-in ballots sent from voters’ prior addresses and election-management databases that were purged. Both practices are legal and common.
Local election officials found 76 misleading, inaccurate or false claims in the audit report.
Legislative leaders have repeatedly acted as firewalls blocking anti-democratic efforts from moving forward. In the days after the election, the Republican speaker of the House and the Senate president from Michigan rebuffed Mr Trump’s personal pleas to support an alternate slate of electors, even after being summoned to the White House.
Mr Trump has not forgotten. Since then, he has made transforming the Michigan Legislature a pet project. He has endorsed 10 candidates for state legislative seats – including some who are challenging Republican incumbents – and is seeking to play kingmaker in the already brewing fight over who will be speaker of the House.
Jonathan Lindsey, a Trump-endorsed candidate for the Michigan Senate, said that at a minimum, he thinks the state Legislature should vote on electors if an election is disputed. Regarding the 2020 election, he added: "If I were in that seat, I would have voted to send Trump electors." – This article originally appeared in The New York Times.