Red States Push Back Against Biden’s Voter Registration Order

A power struggle over voter registration is playing out between the White House and some secretaries of state who say the federal government is trying to take over the voter registration processes from states.

The Executive Order requires every federal agency head to design plans related to voter registration, ensure access to certain incarcerated individuals in federal custody, and design a ballot tracking system for absentee voters under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

“There is no such responsibility enumerated in the U.S. Constitution, and the 10th Amendment clearly states that powers not expressly given to the Federal Government by the Constitution are reserved to the states,” said West Virginia Secretary of State Mac Warner in a statement.

“West Virginia will emphatically not give up our State’s duty to register voters in a nonpartisan manner to the federal government, nor will we accept voter registration forms collected by Federal agents. White House overtaking of State responsibilities is something we will fight all the way to the Supreme Court,” Mr. Warner said.

The statement comes after a “frustrating and convoluted conference call” last week between the White House and secretaries of state.

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“Section 7 of the National Voter Registration Act says states—not the federal government—shall offer voter registration opportunities,” Mr. Warner said. “The White House knows they are prohibited from self-assuming power over the States’ voter registration processes. Biden’s executive order is federal overreach. This executive order is nothing more than another attempt by the White House to take away states’ powers, federalize our elections, and turn voter registration into a partisan activity. Voter registration should be an apolitical service by individual states.”

‘Federal Overreach’

In August 2022, a year after the executive order was issued, a coalition of 15 secretaries of state who had been waiting for the White House to explain the legality and implementation of the order sent a letter calling on President Biden to rescind the directive.

The executive order was issued without constitutional authority or congressional approval, their letter said, and it calls for federal agencies to duplicate voter registration efforts conducted at the state level, and it ignores codified procedures and programs in their state constitutions and laws.

“Involving federal agencies in the registration process will produce duplicate registrations, confuse citizens, and complicate the jobs of our county clerks and election officials,” the letter said. “If implemented, the executive order would also erode the responsibility and duties of the state legislatures to their situational duty within the Election Clause.”

The letter was signed by secretaries of state from Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Nebraska, Ohio, South Dakota, Tennessee, West Virginia, and Wyoming.

Mr. Warner said the states did not hear back from the White House until last week when they were notified on a call with the White House that the federal government is implementing voter registration-related policies.

“I then had the chance to ask a White House official about the plans submitted by each agency to carry out the illegal executive order. I was told those plans are not public, and they never intended for them to be public. So much for transparency,” Mississippi Secretary of State Michael Watson said in an opinion column released on April 10.

“Having received no information or collaboration regarding the executive order’s impact in Mississippi, as the state’s chief election officer, it is incumbent upon me to raise awareness about the gross overreach of the federal government in our elections. The federal government should not be in the business of registering and turning out voters in Mississippi … To keep our republic, now, more than ever, we need an engaged electorate. Election laws should be handled by the states as designed by the Constitution.”

President Biden’s order directed the U.S. Attorney General to ensure the U.S. Marshals Service includes language in intergovernmental agreements and jail contracts to require the jails to provide educational materials related to voter registration and voting, and to facilitate voting-by-mail for prisoners.

It happens that the U.S. Marshals are currently modifying 936 intergovernmental agreements and jail contracts, Mr. Watson noted.

Details of the federal voter registration plans are still unclear. The White House did not consult with state election officials in the development of the plans, nor did the White House explain the need to deploy substantial federal resources to enact their plans during a presidential election cycle.

‘Lack of Transparency’

“They expect us to voluntarily give up our constitutional duty to register voters in the manners that States’ legislatures prescribe,” Mr. Warner said in the statement. “What’s even more disgusting is the timing of these announcements. Biden issued his executive order three years ago in 2021, and they have been working behind closed doors until now. Their lack of transparency and coordination is abhorrent. Now that it is an election year, they roll out their plan to make over 600 Federal agencies voter registration centers and try to do so without explanation or legal justification. This is Biden’s attempt to improperly influence the outcome of the November General Election.”

The timing of the White House rollout is not coincidental, he said, calling it blatant election interference.

Soon after the executive order was issued, agencies started to find ways to register voters. The U.S. Department of Health and Human Services (HHS) announced in 2022 that federal health centers across the nation now have the discretion to participate in activities—including voter registration—that are outside the scope of the health center program.

“Such voter registration activities may include making available voter registration materials to patients, encouraging patients to register to vote, assisting patients with completing registration forms, sending completed forms to the election authorities, providing voter registration materials in waiting rooms, and allowing private, non-partisan organizations to conduct on-site voter registration,” the HHS website says.
The U.S. Department of Housing and Urban Development instructed more than 3,000 public housing authorities managing some 1.2 million public housing units across the country to run voter registration drives in those units.

The U.S. 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 that take place on or off-campus.”

The U.S. Department of Agriculture issued letters to state agencies administering the Supplemental Nutrition Assistance Program (SNAP) and the Women’s Infants and Children’s (WIC) low-income food program, instructing them to carry out voter registration activities with federal funds.