A federal lawsuit in one of this year’s biggest battleground states challenges President Joe Biden’s executive order aimed at driving up the vote, in what one government watchdog calls “arguably the most important election integrity lawsuit in the country.”
State Rep. Dawn Keefer, a Republican who chairs the conservative Pennsylvania Freedom Caucus, is the lead plaintiff in the lawsuit. Keefer and other state legislators assert that Biden’s executive order, as well as separate actions by the administration of Pennsylvania Gov. Josh Shapiro, a Democrat, usurped the lawmakers’ authority.
Lawyers for the Biden and Shapiro administrations have moved for dismissal of the case, known as Keefer, et al., v. Biden, et al., arguing that the lawmakers lack standing and that executive actions on elections at the state level already were authorized by the Pennsylvania Legislature.
“State legislators have rights granted to them in the Constitution, so we do have standing in federal court. The irreparable harm is that they are changing the way elections are being facilitated,” Keefer told The Daily Signal. “Now, we may have authorized them to take action. We never authorized them to break the law.”
The lawsuit, seeking a preliminary injunction to immediately halt the implementation of executive order, is the only lawsuit challenging the executive order, according to a group providing legal representation. Some of the two dozen other plaintiffs are not Freedom Caucus members, and not all Freedom Caucus members are plaintiffs.
Keefer, who represents parts of York County and was first elected to the Pennsylvania House of Representatives in 2016, is chairwoman of the House’s State Government subcommittee on campaign finance and elections.
The lawsuit, filed in U.S. District Court for the Middle District of Pennsylvania, contends that Biden’s executive order directing federal agencies to work with private, nonprofit groups in get-out-the-vote efforts violates Act 88, a state law preventing private dollars from funding election administration.
The Pennsylvania General Assembly passed the measure partly in response to grants to local and state election offices in 2020, originating with donations from Facebook founder Mark Zuckerberg, that critics say drove up the vote in Democrat-dominated areas.
“The president gave his directive to all of his agencies that they are supposed to facilitate voter registration through third-party agencies, that we can’t get the contracts to or or we don’t know what any of the details are, who they’re working with, and how,” Keefer told The Daily Signal.
“Then there’s the question of: Is the president interjecting here in an election where he’s on the ballot? That’s another issue that you have there,” she added. “Are you trying to interfere in an election where it directly impacts or affects you?”
U.S. District Judge Jennifer Wilson, an appointee of former President Donald Trump, is presiding over the case.
“The PA state legislators have, through proper legislative acts, passed a law that prohibits the influence of third-party entities in elections,” the suit argues, but “Biden’s executive order contradicts Pennsylvania state election laws.”
The Daily Signal previously reported that federal agencies are working with left-of-center organizations such as Demos, the Brennan Center for Justice, and the American Civil Liberties Union to get out the vote under Biden’s executive order.
“They are saying these agencies must engage in voter registration because it is a constitutional right to vote,” Keefer said. “Well, it’s also your constitutional right to own a firearm. Are you helping that person to own a firearm, to make sure they can exercise their Second Amendment right?”
The Biden administration has kept a tight lid on how agencies are implementing the president’s executive order on elections. Most information about compliance has come out in trickles through the Freedom of Information Act based on requests from The Daily Signal and other parties.
“Absolutely they are hiding because that’s what we were asking for, to take a look at these third-party contracts. How are they engaging? Who are they engaging with?” Keefer told The Daily Signal, referring to the Biden administration.
“And then not only are they not publicly saying or bragging about ‘Here’s what we’re doing for voter access,’” she added, “but they’re engaging in these services and you’re having to file Freedom of Information Act [requests] in order to see what third parties they’re engaging with and what the contracts are for specifically.”
The complaint filed by Keefer in federal court also argues: “President Biden does not have the unilateral power to oversee and participate in making legislative decisions regarding the time, place, and manner of presidential and congressional elections, including the registration of electors in Pennsylvania.”
The suit continues: “The president of the United States does not have the power to usurp the authority of Pennsylvania legislators with regard to the registration of Pennsylvania voters, as Article VII, Section 1 of the Pennsylvania Constitution clearly places the duty of ‘regulating the registration of electors’ on the [Pennsylvania] General Assembly.”
The lawsuit also challenges Shapiro’s executive order from September 2023 requiring automatic voter registration, noting the proposal failed to pass the General Assembly on multiple occasions.
And it challenges the Pennsylvania Department of State’s 2018 policy saying that election officials can’t reject a voter registration when the applicant’s driver’s license or Social Security number doesn’t match what’s in government records.
The U.S. Justice Department and the Pennsylvania Office of General Counsel filed motions to dismiss the case brought by Keefer and other legislators, arguing they lacked standing.
The White House, the Justice Department, the Pennsylvania governor’s office, and the Pennsylvania Department of State all failed to respond to The Daily Signal’s request for comment by publication time.
Keefer, also a candidate for state Senate, represents Pennsylvania’s 92nd Legislative District in the House, consisting of the townships of Carroll, Dover, Fairview, Franklin, Monaghan, Newberry, Warrington, and Washington, as well as the boroughs of Dillsburg, Franklintown, Goldsboro, Lewisberry, Wellsville, and York Haven.
Keefer, 51, who owned a consulting firm for over 10 years, is married to a former State Police corporal and Marine veteran. The two have three children and live in Dillsburg.
The 2020 presidential election was closely contested in Pennsylvania by Biden and then-incumbent Donald Trump, with Biden emerging as the winner by a margin of 80,555 out of 6.9 million votes cast.
Keefer was outspoken about executive actions to change election procedures by the administration of then-Gov. Tom Wolf, a Democrat, which implemented them without legislative approval.
As a member of the House State Government Committee, Keefer said, she was part of about 80 hours of hearings looking into issues arising from questions about state election laws.
The suit against Biden asserts there is no role for the president, the governor, or other executive officials to create or rewrite laws passed by the Pennsylvania General Assembly.
The U.S. District Court could hold a hearing on plaintiffs’ request for a preliminary injunction within 30 days, said Heather Honey, executive director of Election Research Institute, a watchdog organization whose lawyers are representing the suing lawmakers.
“The executive branch’s role is not to make law,” Honey told The Daily Signal, citing Biden’s Executive Order 14019. “The Pennsylvania Legislature banned third-party nonprofits from involvement in elections, but 14019 directs federal agencies to partner with these nonprofits.”
The Pennsylvania case is the first case anywhere challenging the constitutionality of Biden’s order on getting out the vote, Honey said.
The Foundation for Government Accountability, a watchdog group suing the U.S. Justice Department for documents related to Biden’s order, also filed a friend of the court brief in the Pennsylvania case.
Stewart Whitson, legal director of the Foundation for Government Accountability, said in a widely distributed email that the Pennsylvania lawmakers’ case arguably is “the MOST important election integrity lawsuit in the country.”
Whitson added: “My organization, FGA, filed an amicus brief in support of the more than two dozen state legislators who have sued to try to stop Bidenbucks along with a couple of other unconstitutional efforts underway in PA.”
The lawsuit cites the elections clause of the U.S. Constitution, which assigns the duty of determining the time, place, and manner of elections to state legislatures, as well as the so-called electors clause, which grants state legislatures plenary federal authority to enact statutes governing presidential elections.
The U.S. Supreme Court determined last year, in the case of Moore v. Harper, that state legislative decisions on elections are subject to judicial review. However, the plaintiffs in the Pennsylvania case cite the Supreme Court majority for stating that “it is the state legislatures that must provide a complete code for congressional regulations relating to elections.”
The plaintiffs also contend that Article VII, Section 1 of the Pennsylvania Constitution assigns to the Legislature the duty of passing laws involving the registration of electors, or voters.
The lawsuit argues that the U.S. Election Assistance Commission issued an advisory opinion that government election officials are prohibited from using federal funds to conduct voter registration drives or get-out-the-vote campaigns.
“Voter registration drives and GOTV [get-out-the-vote efforts] are a federally recognized private function, not a government function,” the federal complaint says. “But, Biden’s executive order requires agencies to develop plans for government-sponsored voter registration drives run by federal agencies and undisclosed third-party organizations.”
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