A group of 12 Republican federal lawmakers urged the Supreme Court this week to consider Pennsylvania state Republicans’ challenge to President Joe Biden’s executive order that escalates government involvement in the voter registration and voter mobilization process.
Because the programs outlined in the executive order put federal resources behind the government-led effort to register voters, critics have dubbed the programs “Bidenbucks,” a play on “Zuckerbucks,” which refers to Facebook co-founder Mark Zuckerberg’s controversial injection of $400 million in 2020 into state election programs.
State lawmakers argue the order is unconstitutional and say that voter registration drives are not a legitimate function of government. They are also challenging an executive order issued by former Pennsylvania Gov. Tom Wolf (D) about voter registration.
The lawmakers argued in their lawsuit that the executive actions violated their rights under the U.S. Constitution by usurping their power to prescribe the times, places, and manner of holding elections.
The individual lawmakers “did not have standing to bring a challenge to an action that allegedly injured the legislature as a whole,” the judge wrote.
They “alleged only an institutional injury resulting from ‘a general loss of legislative power,’” she continued.
“A vague, generalized allegation that elections, generally, will be undermined, is not the type of case or controversy that this court may rule on under Article III [of the U.S. Constitution].”
On April 18, the lawmakers filed a notice with the district court saying they were appealing the ruling to the 3rd Circuit.
They told the Supreme Court that they wanted expedited consideration of the standing issue so if they prevail, “they can possibly obtain a preliminary injunction in the district court well before the November 2024 election.”
Executive Order 14019
In the petition, Ms. Keefer and her colleagues state that Executive Order 14019 directs federal agencies to use government funding and resources for voter registration drives and get-out-the-vote activities despite a lack of congressionally approved appropriations for such activities, as required by federal law.The order also forces federal agencies to use government resources to work with specific non-governmental third-party organizations chosen by the Biden administration and whose names and roles have been withheld from the public.
It is a problem that President Biden, who is also a candidate in the 2024 election, “stands to benefit personally from the executive action,” the petition states.
Implementation of the executive order is “a usurpation of Pennsylvania state law,” and “nullifies the intended legal effects” of a state statute, “depriving the individual state legislators of the intended legal effects of their successful vote[.]”
This is “a legally cognizable injury under Article III … because the individual state legislators’ personal votes were nullified,” according to the petition.
“Fair elections are the lifeblood of our constitutional republic. … When the executive branch of government seeks to unilaterally abuse its authority and power, as well as misuse taxpayer funds, to influence an election to the advantage of one political party, such ultra vires actions have the capacity to corrupt the entire electoral process and thus undermine our system of government.”
The U.S. Constitution’s Elections Clause places primary responsibility for administering federal elections in the hands of state legislatures, with limited oversight by Congress.
“The diffusion of power and the checks and balances imposed by our Constitution are all designed to protect the liberty of the People and to prevent the tyranny of government. And this is particularly true when it comes to elections as elections are the primary way in which government officials obtain and retain their power.”
The president has no authority to make all federal agencies get involved in voter registration and participation, the brief states.
This “illicit authority” presents a “threat to the fairness of our elections,” and “threatens to convert the White House into a partisan political campaign headquarters.” It also allows one political party “to target key demographics and to use federal authority to shape elections to favor the party and its candidates.”
The brief also urges the Supreme Court to find that the state lawmakers have standing to challenge the executive order.
The other federal lawmakers on the brief are U.S. Reps. Scott Perry (R-Pa.); Guy Reschenthaler (R-Pa.); Mike Kelly (R-Pa.); Glenn Thompson (R-Pa.); John Joyce (R-Pa.); Lloyd Smucker (R-Pa.); Claudia Tenney (R-N.Y.); Andy Ogles (R-Tenn.); Rich McCormick (R-Ga.); and Randy Weber (R-Texas).
Independent State Legislature Doctrine
Meanwhile, Democracy Docket, a left-wing election law website founded by longtime Democratic National Committee attorney Marc Elias, said May 28 that the state lawmakers are trying to get the Supreme Court to take a second look at the Independent State Legislature Doctrine, which the court rejected a year ago in a case brought by North Carolina Republicans.The doctrine holds that state legislatures have sweeping authority to make the rules for federal elections in the states without interference from the courts.
Democracy Docket called the doctrine “a radical legal theory that could upend American elections.” If adopted by the Supreme Court, the doctrine could “mean that only state legislatures can regulate federal elections.”
The Keefer petition does not mention the Independent State Legislature Doctrine and does not appear to ask the Supreme Court to adopt it.
Republicans have argued that the Constitution has always directly authorized state legislatures alone to make rules for conducting federal elections in their respective states. Democrats say it is a fringe conservative legal theory that could endanger voting rights, enable extreme partisan gerrymandering in the redistricting process, and cause upheaval in election administration.
“In practice this could mean that all other parts of state government — not by governors, the courts, the people or even state constitutions themselves — can set the rules governing elections,” Democracy Docket said.
On June 27, 2023, the Supreme Court rejected the doctrine on a 6-3 vote in Moore v. Harper, an appeal brought by North Carolina Republicans. The court found that the Elections Clause doesn’t vest exclusive, independent authority in state legislatures to set the rules regarding federal elections.
Chief Justice John Roberts wrote that “state courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.”
“But federal courts must not abandon their own duty to exercise judicial review,” he added.
It is unclear when the Supreme Court will consider the petition in Keefer v. Biden.
