Are state legislators really seeking power to overrule the voters?

In a speech on voting rights in Philadelphia, President Joe Biden vowed that his administration would fight back against new voting restrictions pushed by allies of former President Donald Trump.

State legislators are now engaged in a "broad assault against voting," Biden said July 13. Among the threats he cited were efforts to move power away from independent election administrators and toward partisan actors with the power to overturn election results.

"This is election subversion," Biden said. "It’s the most dangerous threat to voting and the integrity of free and fair elections in our history. Never before have they decided who gets to count ... what votes count. 

"Some state legislators want to make it harder for you to vote," he added. "And if you vote, they want to be able to tell you your vote doesn’t count for any reason they make up. They want the ability to reject the final count and ignore the will of the people if their preferred candidate loses."

(The video suggests that Biden said "legislators," even though the official White House transcript showed "legislatures." We are checking what we heard him say.)

Biden’s charge is extremely serious: Having votes counted fairly and accurately is at the heart of the process of democracy. But when we looked into the specifics, Biden's claim about legislators wanting to be able to overturn the voters' will wasn’t as clear cut as he made it sound.

Much of the attention on this issue has focused on the Republican-backed law passed earlier this year in Georgia. A provision in the law gives power to the state election board to suspend local election officials. Some Democrats have predicted Republicans will use that power to overturn results, but that’s speculative rather than a certainty.

A White House spokesperson told PolitiFact that Biden was referring not to Georgia but to Arizona, Pennsylvania and Wisconsin, and the White House provided specifics about the actions that have been taken in each state.

In Arizona, a Republican legislator offered a bill this year that would allow a majority of the Legislature to revoke the certification of an election by the secretary of state. However, the bill has not passed. 

Arizona did pass legislation that would strip authority for handling election-related litigation from the secretary of state (who is currently a Democrat) and hand it to the attorney general (who is currently a Republican).

As for Pennsylvania and Wisconsin, the actions cited by the White House weren’t new legislative efforts, but rather efforts by individual legislators last year to overturn Trump’s losses in those states.

Meanwhile, Arkansas and Kansas have passed laws that critics warn could be used to overturn elections, but the text of the laws doesn’t clearly spell out those powers.

Ultimately, we decided that Biden’s statement is too speculative for us to render a Truth-O-Meter rating. However, we did take a closer look at the evidence the White House cited and examples from other states.

The White House pointed to news coverage of a bill proposed by a Republican lawmaker that would have given the Legislature power to take away the secretary of state’s power in certifying the presidential election.

State Rep. Shawnna Bolick, a Republican representing Phoenix, introduced House Bill 2720 in January to allow a majority vote of the Legislature to "revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of the election." The bill didn’t require that the Legislature hold any hearings, be in session, or cite a reason. 

Bolick argued in a February op-ed in the Washington Examiner that the bill would distribute power to certify electors among "90 elected members of the House and Senate," instead of just one official — the secretary of state.

Arizona Secretary of State Katie Hobbs, a Democrat elected in 2018, tweeted in response to the bill: "So really, we should just get rid of the presidential election altogether? In reality, that’s what this bill would do."

While the bill drew a lot of media attention, it didn’t reach a vote before the legislative session ended.  (Bolick announced that she is running for secretary of state. Hobbs is running for governor.) 

So this bill cited by the White House is an example of a legislator proposing a route to reject the final count, but it didn’t gain traction.

However, Arizona Republicans did successfully pass legislation that stripped Hobbs of the power to defend election lawsuits and handed it to the attorney general, currently Republican Mark Brnovich. The law applies through Jan. 2, 2023, the end of Hobbs’ term. It would expire before the next presidential election. 

The White House did not cite this legislation, and the law does not hand power to legislators, but it does effectively hand more power to the Republicans currently in office.

The White House pointed to news coverage of a December 2020 resolution proposed by some Republicans in the Pennsylvania House and Senate. The resolution called for withdrawing certification of Biden’s win and having the GOP-controlled Legislature appoint the presidential electors instead.

The Legislature’s top Republicans — Senate President Jake Corman, House Speaker Bryan Cutler, Senate Majority Leader Kim Ward and House Majority Leader Kerry Benninghoff — collectively said they would not go along with the resolution, and Pennsylvania’s electoral votes were ultimately cast for Biden.

So the Pennsylvania example showed an appetite among some Republicans for claiming the power to overturn election results, but it was short-circuited by Republican legislative leaders, and did not involve an effort to enshrine the power in future elections, other than possibly setting a precedent for it.

The White House pointed us to news coverage of the decision by two Republican members of Wisconsin’s state Assembly — Jeff Mursau and David Steffen — to join a federal lawsuit by the Wisconsin Voter Alliance seeking to keep Congress from certifying the Electoral College results. The plaintiffs asked the court to give state legislatures final approval over election results.

Steffen told Wisconsin Public Radio after joining the suit that "powers assigned to legislators in either the state or United States Constitution, such as voting, district map design or elector determinations, are not transferable to a bureaucracy, organization or other third party." 

This argument didn’t hold water in court, however. On Jan. 4, 2021, U.S. District Judge James E. Boasberg ruled against the plaintiffs, writing that "the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for president of the United States."

After the ruling, the legislators withdrew their suit. Boasberg later asked a judicial committee to consider sanctioning their attorney for bringing the case.

Like the Pennsylvania example the White House cited, the Wisconsin example showed that at least some Republican legislators sought to have legislatures granted the power to overturn election results. But this effort was also shut down, this time in the courts, and it did not involve an effort to enshrine the power in future elections.

We found two other states where legislation already passed this year could arguably shift the power to decide elections, but in both cases, as with the Georgia law, the impacts are speculative.

In Arkansas, the Legislature passed H.B. 1803, and Republican Gov. Asa Hutchinson allowed it to become law without his signature.

The bill provides greater power for the existing State Board of Election Commissioners, which is largely filled by political appointees, to investigate violations of election laws and "institute corrective actions." The law permits the board to probe "certification of election results, administration of an election, election processes, (and) conduct of an election," and some critics argue that this language could enable the board to overturn elections. But that remedy is not spelled out in the law, so that interpretation is uncertain.

In Kansas, H.B. 2332 was passed by the state’s Republican Legislature and enacted despite a veto by the Democratic governor, Laura Kelly. The impact of this bill for certifying election results is even less clear.

A portion of the bill says that "the secretary of state shall not enter into any consent decree or other agreement with any state or federal court regarding the enforcement of any election law or the alteration of any election procedure without specific approval of such consent decree by the legislative coordinating council."

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