It's time for swing state Republican legislatures to step up for Trump

Is the 2020 presidential election over? No, it is not. President Trump has a path to victory under the U.S. Constitution. It lies with the Republican legislatures in the swing states.

Team Trump has produced a mountain of evidence demonstrating that the Democrats committed outcome‑determinative election fraud. They may have rigged the voting machines, and they indisputably used fraud, intimidation and removal of observers, ballot harvesting — and, perhaps most seriously, unconstitutional last‑minute changes in the voting rules, another form of cheating. 

Peter Navarro comprehensively analyzes much of the evidence in his recent report, “Immaculate Deception: Six Key Dimensions of Election Irregularities.” The Democrats said they were determined to oust Mr. Trump by any means necessary — and they cheated to the degree necessary to overcome his record 74 million-plus votes.

The courts so far have refused to adjudicate these claims. Their refusal is somewhat understandable. The judiciary is ill-equipped to adjudicate these issues in the compressed time available and they tend to defer to the political branches on elections. 

But Mr. Trump does not need to win in court. Under the Constitution, the state legislatures have plenary authority to choose electors. Of course, every legislature has delegated the power to appoint presidential electors to the voters. That has been true since the early 19th century. In the swing states (Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada), the vote was always going to be close but the executive branches allowed the popular will to be thwarted by cheating.

This serious breach of election integrity justifies an equally serious remedy. Accordingly, these legislatures are justified in reclaiming their authority to select the electors. As Bush v. Gore teaches, the legislatures have this authority. 

In all the swing states (except Nevada), the legislatures happen to be majority Republican. These legislatures can reclaim their authority.  And they should do so to protect the Republican voters who played by the rules and saw their votes unlawfully nullified. A party that cannot protect its voters from election fraud is doomed. 

We already see the damage in Georgia. The Republican establishment in D.C. is frantic to win these seats or lose control of the Senate. But Republican voters in Georgia are asking, why should we vote on Jan. 5, when the party will not fight for the integrity of the vote just taken on Nov. 3? 

If the swing state Republican legislatures do not step up, expect this same controversy to extend downward to the state level. No doubt there are Republican state legislators who plan to hunker down until it all blows over. But they should not count on it blowing over, especially if President-elect Biden takes office and the political left runs rampant. All of that will be hung around of their necks for failing to prevent it when they could. There will be primary challenges in Republican districts and in swing districts Republican voters will stay home. The Republican Party will be greatly weakened and incumbents may find themselves ousted.

On the other hand, if these legislatures do step up, they will be heroes.  Their voters will be even more motivated in the next cycle. It will have an invigorating effect, with the Republican Party now proven willing to protect their voters from cheaters. 

This positive act will help with the next phase of the election. On Jan. 6, Congress convenes to count the electors. The governors of the swing states have certified their electors for Mr. Biden. But the legislatures of these states have also appointed “shadow” electors for Mr. Trump. The legislatures should issue resolutions reclaiming their authority and certifying the Trump electors. That would create dueling groups of electors from each state.

Under an ambiguous federal statute from the late 1800s, Vice President Mike Pence (who counts the votes) may be directed to accept the electors certified by the state executive branches (i.e., the Biden electors). But this statute cannot be applied to nullify the constitutional authority of the state legislatures. The vice president could choose to count only the Trump electors, which would give Mr. Trump an outright win. 

Or the vice president could reject both sets of electors. In this case, it is possible that neither Mr. Trump nor Mr. Biden would have a majority. If that were to happen, Mr. Pence would be constitutionally obliged to immediately conduct a contingent election in the House, giving each state delegation a single vote. Given Republican control of a majority of state delegations, it is possible for Mr. Trump to win that vote as well.

We are living in an unhappy time. The pandemic of 2020 is the worst in a century. The brazen election theft in 2020 is the worst since the Civil War era. But there is hope. In the coming days, the Republican legislatures in the swing states can decisively vindicate the integrity of the 2020 presidential election. Let us hope they do not look away or flinch. Let us pray that they act swiftly to vindicate self‑governance by free and fair elections. The cheaters should not be permitted to win.

• Jeffrey K. Shapiro is a lawyer in Washington, D.C. He served in the Office of Legal Counsel in the Justice Department during the Bush I and Clinton administrations.