A group of 24 Republican Pennsylvania legislators who in January challenged a voter registration executive order made by President Biden are now asking the U.S. Supreme Court to weigh in on their case.
In 2021, President Biden signed Executive Order 14019 for “promoting access to voting.” It requires all federal agencies to help increase voter registration and participation.
The legislators say the order is unconstitutional and that voter registration drives are not a government function.
“The Constitution was written to prevent the president from using the federal agencies to gain his own re-election,” attorney Erick Kaardal, a partner of Mohrman, Kaardal & Erickson, P.A., said in a statement. Mr. Kaardal represents the lawmakers.
“President Biden rips up the constitutional playbook for elections in order to assist with his own re-election campaign. It’s constitutionally wrong.
“Using American taxpayer dollars to create secret federal-agency-led operations to target likely Democrat voters with hand-picked leftist non-governmental organizations approved by the White House isn’t on the up and up.”
The legislators say the Elections Clause and the Electors Clause of the U.S. Constitution give state legislators the sole constitutional right to determine the manner of elections.
It is not the role of the president, governor, or other executive officials, such as the secretary of state, to create, rewrite, or disregard the laws established by the legislature.
They allege they have been unconstitutionally excluded from the lawmaking process regulating federal elections for president and Congress.
“I am the voice of the people I represent and, as such, vote for laws that I believe will provide my constituents the best opportunities and quality of life in this Commonwealth,” Pennsylvania Rep. Joe Hamm said in a statement.
“When an executive exceeds his authority by changing laws or making new laws, it violates the Constitution and takes the voice of the Legislative Branch away—effectively leaving the people of Pennsylvania with no voice.”
Because of the executive order, federal agencies unrelated to elections are now engaging in get-out-the-vote activities.
The U.S. Department of Health and Human Services (HHS) announced in 2022 that federal health centers now have the discretion to participate in activities—including voter registration—that are outside the scope of the health center program project.
At federal health centers, HHS is now allowed to provide voter registration materials to patients, encourage them to register to vote, help them to complete registration forms, send completed forms to the election authorities, provide voter registration materials in waiting rooms, and allow private organizations to conduct on-site voter registration.
The Department of Housing and Urban Development instructed more than 3,000 public housing authorities managing some 1.2 million public housing units nationwide to run voter registration drives in those units.
The Department of Education sent a letter to universities directing them to use Federal Work Study funds “to support voter registration activities.”
The letter said, “If a student is employed directly by a post-secondary institution, the institution may compensate a student for [Federal Work Study] employment involving voter registration activities on or off-campus.”
The U.S. Department of Agriculture issued letters to state agencies administering the Supplemental Nutrition Assistance Program and the Women, Infants, and Children low-income food program instructing them to carry out voter registration activities with federal funds.
Lack of Standing
Last month, a federal court dismissed the lawsuit for a lack of standing.The legislators have appealed the case to the U.S. Court of Appeals for the Third Circuit.
They wish to resolve the issue before the 2024 election, and because of the pace of the judicial system, the legislators are now asking the U.S. Supreme Court to decide on the issue of standing so the case can proceed.
The legislators are not asking the Supreme Court to review the merits of the case. They are asking only for the court to determine whether the legislators have standing.
Mr. Kaardal said the question for the Supreme Court is, “Do individual lawmakers have the right to challenge federal executive branch usurpation of their Constitutional duties?”
If the High Court agrees they have standing, Mr. Kaardal and Karen DiSalvo, from the Election Research Institute, who is also involved in the case, will go back to the lower court and seek an injunction to stop President Biden’s executive order while the case is heard.
“Petitioners ask this Court to resolve the nationwide conflict over individual legislator standing,” court documents read. “Petitioners have no other recourse. The stakes could not be higher.”
The plaintiffs are Pennsylvania state Sen. Cris Dush and state Reps. Dawn Keefer, Timothy Bonner, Barry Jozwiak, Barbara Gleim, Joseph Hamm, Wendy Fink, Robert Kauffman, Stephanie Borowicz, Donald (Bud) Cook, Paul Michael Jones, Joseph D'Orsie, Charity Krupa, Leslie Rossi, David Zimmerman, Robert Leadbeter, Dan Moul, Thomas Jones, David Maloney, Timothy Twardzik, David Rowe, Joanne Stehr, Aaron Bernstine, and Kathy Rapp.
“I think Justice [Clarence] Thomas was right when he said that changing the rules in the middle of the game is bad enough―but rule changes by officials who lack authority to do so is even worse,” Ms. Keefer said in a statement.
“We are optimistic that the Court will take our case and make it clear that legislators have standing to sue when executive officials try to unconstitutionally change the manner of elections.
“If we don’t resolve this issue, there is no way to restore the balance of power. We are confident that the Court will agree.”
