‘No Authority’: Biden’s ‘Partisan’ Voter Registration Push May Violate Federal Law, Legal Experts Say

The Biden administration’s voter registration push likely violates multiple federal laws, including one prohibiting agency employees from engaging in political activities, though the lack of transparency surrounding the executive order makes it hard to say for certain, legal experts told the Daily Caller News Foundation.

President Joe Biden signed an executive order in March 2021 instructing federal agencies to find ways to promote voter registration and participation, partnering with nonprofits for get-out-the-vote efforts. On its face, the initiative runs the risk of violating multiple federal laws, including the Hatch Act, which prohibits certain employees at federal agencies from engaging in political activities, legal experts told the DCNF.

Election law attorney Audrey Perry Martin told the Daily Caller News Foundation the order could violate the Hatch Act, depending on how it is being implemented.

“If executive agencies accept volunteer services from third-party organizations with a partisan purpose to register voters, that would appear to violate the Hatch Act,” she said. “Unfortunately, the Biden Administration has not been forthcoming about the details of the plan and how it is being implemented, which makes it impossible to know if the Hatch Act, or other federal laws for that matter, are being violated.”

The order directs agencies to solicit “approved, nonpartisan third-party organizations and State officials to provide voter registration services on agency premises.” Based on records obtained through a Freedom of Information Act (FOIA) request, The Heritage Foundation’s Oversight Project argued the initiative was a “partisan voter mobilization effort” for Democratic groups, pointing to its “activist origins” and the organizations that participated in a “listening session” to help facilitate the order.

Demos, a left-wing think tank whose founding members include former President Barack Obama, promoted a similar plan in December 2020 for using executive action to advance ” civic participation for all Americans, particularly for Black and brown Americans.” It said on the day the order was published that it was “an important step forward on an initiative Demos promoted as a priority for the Biden-Harris administration during the presidential transition and has been a focal point of our work for years.”

Many of the groups present at a July 12, 2021 listening session on implementing the order were members of the Leadership Conference on Civil and Human Rights, a coalition of over 200 groups that includes the Southern Poverty Law Center, the National Center for Transgender Equality and National Center for Lesbian Rights, the Oversight Project noted.

“The evidence from the listening session makes it seem more likely that Hatch Act violations are occurring,” Perry Martin said. “If the Biden administration is only reaching out to left-leaning groups regarding the implementation of the Executive Order and federal agency attempts to register voters are targeted solely or primarily to Democratic voters through these left-leaning third-party organizations, that would be problematic under the Hatch Act.”

Proposals put forward during the listening session included the American Civil Liberties Union’s (ACLU) suggestion to use the Head Start federal preschool program for low-income families to register voters and Demos’ proposal to use the Housing and Urban Development agency to register low-income voters seeking public housing, according to the Oversight Project.

“Depending on how federal agency staff and the partisan nonprofits handle the clients of these federal agencies, they could violate the Hatch Act if they are engaging in partisan statements, persuasion, intimidation, or coercion of these clients,” Hans von Spakovsky, senior legal fellow and manager of the Election Law Reform Initiative at the Heritage Foundation, told the DCNF. “This is particularly true of vulnerable members of the public who are applying for benefits at different agencies and are given the impression that if they don’t register, or don’t vote, or don’t support the political party controlling the White House and all of these federal agencies, that they won’t receive their government benefits.

But von Spakovsky is certain the order violates another law: the Anti-Deficiency Act, which “makes it a violation of the law for any federal employee to make any expenditure for anything that has not been appropriated for by Congress.”

“In other words, unless Congress authorized and appropriated funds for federal employees to engage in voter registration activities, they are violating the law,” he said.

Separately, twenty-seven state legislatures in Pennsylvania sued to block Biden’s order, along with actions by Democratic Governor Josh Shapiro and Secretary of the Commonwealth Al Schmidt, which they argue “violate the Electors Clause and Elections Clause by usurping the rights of the state legislators by changing Pennsylvania election laws via Executive Orders, edicts, and directives without the state legislators’ participation.”

“No aspect of Pennsylvania’s voter registration regime permits the President or the Executive Branch of the federal government—with the sole exception of voter registration efforts in military recruiting offices—to participate in or engage with voter registration in the Commonwealth of Pennsylvania,” the lawsuit states.

Perry Martin explained that the legislators are “relying on the independent state legislature theory to argue that, among other things, the Elections Clause vests the power to dictate the time, place, and manner of elections to the state legislature.”

“Although that theory was partially rejected by the Supreme Court last year in Moore v. Harper, this case approaches the issue a little differently,” she said. “For one, Harper dealt with redistricting plans, not details of the election process, which would seem to fit more neatly into the state legislators’ Elections Clause duties.”

A pending petition before the Supreme Court asks the justices to rule on whether the individual legislators have standing to bring the lawsuit. The district court dismissed their case based on standing in March.

“Pennsylvania’s voter registration laws, enacted by the constitutionally designated lawmakers, are the first line of defense in protecting the election system,” Jessica Hart Steinmann, general counsel at the America First Policy Institute and former senior Department of Justice official in the Trump administration, said in a statement. “Executive officials have no authority to change the laws and may only enforce existing laws.”

The White House did not respond to a request for comment.