Just in time for the 2024 election cycle, the Pennsylvania Freedom Caucus wants to make changes to the way elections are conducted in the state.
Rep. Dawn Keefer (R-York) and nearly two dozen Keystone State legislators filed a federal civil rights complaint against President Joe Biden, Gov. Josh Shapiro and representatives of the Pennsylvania Department of State.
Filed in the Middle District Court of Pennsylvania, the complaint states that “Through the Elections Clause and the Electors Clause of the United States Constitution, state legislators are granted unique, particular constitutional rights to determine the manner of elections. There is no role for the President, the Governor or other nonlegislative executive officials to create or rewrite laws or disregard the laws established by the legislature.”
“The citizens of Pennsylvania have been victimized by extraordinary overreach of executive officials who have made changes to election laws with no authority to do so,” said Keefer, the lead plaintiff in the case. “If we don’t take action to stop this, there is no limit to the changes they might make to further erode Pennsylvania’s election system in 2024 and beyond.”
The plaintiffs state in their complaint that “The Elections Clause of the U.S. Constitution assigns the duty of determining the time, place, and manner of elections to state legislators. The Electors Clause grants state legislatures plenary federal authority to enact statutes governing presidential elections.”
In its 2023 Moore v. Harper decision, the Supreme Court held that the Elections Clause, in Article I, Section 4 of the U.S. Constitution, does not protect a state legislature from a state court reviewing whether the state legislature’s exercise of its Election Clause authority is consistent with its state constitution. Rejecting an argument that the Elections Clause insulated state legislatures from the ordinary exercise of state judicial review, the Court observed: State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.
The Court, however, cautioned that state court power to review state rules regarding [t]he Times, Places and Manner of holding Elections for Senators and Representatives was limited to the ordinary bounds of judicial review and that state courts should not arrogate to themselves the power vested in state legislatures to regulate federal elections.
The plaintiffs’ interpretation of the decision in Moore v Harper was that it made it clear that “it is the state legislatures that must provide a complete code for congressional regulations relating to elections.” Article VII, Section 1 of the Pennsylvania Constitution clearly assigns the duty of passing laws involving the registration of electors to the Pennsylvania General Assembly.
The plaintiffs state that Biden, Shapiro and the Pennsylvania Department of State have unconstitutionally excluded Keystone State lawmakers from the process of regulating federal elections for President and Congress.
They cited Biden’s 2021 Executive Order that tells federal agencies they shall consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process. The following year, the Pennsylvania legislature passed Act 88 which included provisions to eliminate the influence of nongovernmental third-party organizations on Pennsylvania elections. Pennsylvania law prohibits public officials from entering into agreements with third-party entities for the registration of voters.
In September, Shapiro announced that Pennsylvania was implementing automatic voter registration for eligible Commonwealth residents obtaining driver licenses and ID cards at Pennsylvania Department of Transportation (PennDOT) driver and photo license centers.
The plaintiffs argue that through his edict, Shapiro directed PennDOT to disregard existing Pennsylvania law requiring an opt-in for voter registration applications – an abusive and capricious exercise of executive power which usurps the function of the Pennsylvania legislature.
Pennsylvania is one of 15 states that do not require identification to vote. The complaint reads that “More problematic is the fact that Pennsylvania does not require verification of identity, eligibility, or residency to register to vote. The reason for this is that the verification requirements, put into place by the duly elected state legislators, were removed via an unlawful directive from the Department of State.”
“It is abundantly clear that Governor Shapiro’s commonsense action to securely streamline voter registration and enhance election security is within the Administration’s authority,” said Shapiro’s spokesperson Manuel Bonder. “Any suggestion that the Administration lacks the authority to implement automatic voter registration is frivolous. This Administration looks forward to once again defending our democracy in court against those advancing extreme, undemocratic legal theories.”
Automatic Voter Registration is, in fact, authorized by both federal and state law. The federal National Voter Registration Act and the state Elections and Voter Registration Act require PennDOT to provide for simultaneous voter registration as part of applying for a driver’s license or photo ID. The General Assembly has given the Secretaries of the Commonwealth and Transportation broad authority to implement this requirement, which specifically includes the authority to determine the form of the combined driver’s license and voter registration form.
“This is yet another effort by extremist House Republicans to make it harder for Pennsylvanians to vote – this time, trying to make it harder for them to even register to vote,” said Adam Bonin, a Philadelphia-based attorney who specializes in political law. “Instead of pursuing these radical theories, they should come to the table to help enact common-sense solutions to help Pennsylvanians register to vote, cast their votes, and have them counted quickly.”
Other plaintiffs include Reps. Tim Bonner (R-Butler/Mercer), Barry Jozwiak (R-Berks), Barbara Gleim (R-Cumberland), Joe Hamm (R-Lycoming), Wendy Fink (R-York), Rob Kauffman (R-Franklin), Stephanie Borowicz (R-Centre/Clinton/Union), Bud Cook (R-Fayette/Greene/Washington), Mike Jones (R-York), Joe D’Orsie (R-York), Charity Krupa (R-Fayette), Leslie Rossi (R-Westmoreland/Somerset), David Zimmerman (R-Berks/ Lancaster), Robert Leadbeter (R-Columbia), Dan Moul (R-Adams), Thomas Jones (R-Lancaster/Dauphin), David Maloney (R-Berks), Tim Twardzik (R-Schuylkill), David Rowe (R-Juniata/Mifflin/ Snyder/Union), Joanne Stehr (R-Northumberland/Columbia/ Montour), Aaron Bernstine (R-Beaver/Butler/Lawrence), Kathy Rapp (R-Crawford/Forest/Warren), and Sen. Cris Dush (R-Cameron/Centre/Clinton/Elk/Jefferson/McKean/Potter).