Pennsylvania GOP lawmakers file suit against Biden and Shapiro over election authority

The lawsuit by members of the PA Freedom Caucus argues that the power to determine the manner of elections rests with state legislatures

By: and - January 25, 2024 9:00 pm
A voting sign in Philadelphia

A voting sign in Philadelphia. (Capital-Star photo by Michala Butler)

A group of two dozen conservative Pennsylvania lawmakers filed a federal lawsuit on Thursday against Gov. Josh Shapiro, President Joe Biden, and state elections officials, alleging they had usurped the state Legislature’s authority to direct presidential elections in Pennsylvania. 

The lawsuit argues that the U.S. Constitution grants the power to “determine the time, place, and manner” of conducting elections to state legislatures in their respective states.

It challenges Biden’s 2021 executive order directing federal agencies “to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process” by partnering with third-party nongovernmental organizations.

The lawsuit claims that the Biden executive order conflicts with Act 88, which the General Assembly passed in 2022 to eliminate the influence of third-party organizations in the administration of Pennsylvania elections.  

It also challenges Shapiro’s executive order from September 2023 that implemented automatic voter registration in the state. Under that order, eligible residents are automatically registered to vote when they renew drivers’ licenses or ID cards at PennDOT driver and photo license center, unless they opt out. 

Pennsylvania adds automatic voter registration

And the lawsuit goes back to 2018 to challenge a directive from the Department of State under then-Gov. Tom Wolf, which states that voter registrations can’t be rejected only because an applicant’s identifying numbers — such as their drivers’ license number or Social Security number– doesn’t match what the government has in its database.

Both federal and state laws require PennDOT to provide for voter registration when applying for a driver’s license or state photo identification. The General Assembly has authorized both the secretary of state and the transportation secretary to implement the federal requirement including authority to determine details of the combined driver’s license application and voter registration form.

Rep. Dawn Keefer (R-York), who is the head of Pennsylvania’s right wing Freedom Caucus, is listed as lead plaintiff in the case. 

“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,” Keefer said in a statement. “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.”  

Many of the lawmakers listed as plaintiffs are members of the Pennsylvania Freedom Caucus

Shapiro spokesperson Manuel Bonder said in a statement emailed to the Capital-Star that the governor was focused on ensuring elections are free, fair, safe, and secure.

 “It is abundantly clear that Governor Shapiro’s common sense action to securely streamline voter registration and enhance election security is within the Administration’s authority,” Bonder added. “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.”

Adam Bonin, a Democratic Philadelphia election lawyer, said the lawsuit appears to hinge on the theory that the Constitution grant of authority to state Legislatures to regulate federal elections is exclusive. In a 6-3 decision last year the U.S. Supreme Court rejected that assertion by members of the North Carolina Legislature, ruling that state courts can supervise that exercise of that power. 

“Once again, Republicans are trying to make it harder for people to vote, this time based on radical legal theories that straddle the border between kooky and wackadoodle,” Bonin told the Capital-Star. “They should instead be working on bipartisan solutions to make voting easier and counting faster.”

Capital-Star staff reporter John Cole contributed

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Peter Hall
Peter Hall

Peter Hall has been a journalist in Pennsylvania and New Jersey for more than 20 years, most recently covering criminal justice and legal affairs for The Morning Call in Allentown. His career at local newspapers and legal business publications has taken him from school board meetings to the Pennsylvania Supreme Court and many points of interest between. He earned a degree in journalism from Susquehanna University.

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Kim Lyons
Kim Lyons

Kim Lyons is a veteran western Pennsylvania journalist who has covered people and trends in politics and business for local and national publications. Follow her on Threads @social_kimly

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