Pennsylvania’s legal battle over “Bidenbucks” will go on after a federal judge last week dismissed a lawsuit by a group of Keystone State lawmakers challenging President Joe Biden’s constitutionally suspect executive order that uses federal agencies as a Democrat get-out-the-vote machine.
Attorney Erick Kaardal, who represents Freedom Caucus Republicans in the Pennsylvania General Assembly, tells The Federalist that the 26 lawmakers plan to ask the U.S. Supreme Court to hear the lawsuit against the president and Gov. Josh Shapiro, a Democrat.
“We’re going to be petitioning for accelerated review by the Supreme Court, using the Purcell Principle, not as a shield but as a sword,” Kaardal said.
The Purcell Principle deals with the timeliness of election rules, asserting that changing laws just before an election could confuse voters and create headaches for election administrators.
The principle, according to SCOTUSblog, was drawn from Purcell v. Gonzalez, “in which the Supreme Court reversed an October 2006 decision of the U.S. Court of Appeals for the 9th Circuit blocking an Arizona voter ID law during that year’s midterm election.”
Kaardal says his clients will soon file a motion in the U.S. 3rd Circuit Court of Appeals and petition the Supreme Court to immediately review the lower court’s decision.
“The idea of filing under the Purcell Principle is that the Supreme Court should take this before the summer recess so it can decide whether President Biden’s Executive Order 14019 is to be the law of the land,” the election integrity attorney said.
If the courts don’t act soon on the constitutionally suspect executive order, the Biden administration will likely use the Purcell argument to claim that stopping the GOTV fiat would only confuse voters and burden election administrators.
‘Bidenbucks’ Tentacles Spreading
Election integrity advocates have dubbed the executive order “Bidenbucks” — a nod to the “Zuckerbucks” rolled out in the 2020 election. Signed within months of Biden’s narrow victories in election-deciding battleground states like Pennsylvania, the executive order is benignly painted as “promoting access to voting.” It’s ultimately designed to employ government to recruit voters for one political party.
“Sounds harmless on its face, until you consider the fact that it is being carried out by political appointees … and that the person charged with collecting the plans and leading this effort is President Joe Biden’s domestic policy advisor, Susan Rice,” Tarren Bragdon, president of the Foundation for Government Accountability, wrote in a 2022 column in The Federalist.
As The Federalist reported last week, the Michigan Department of State has signed a Memorandum of Understanding (MOU) with the U.S. Small Business Administration “to promote civic engagement and voter registration in Michigan.” According to Michigan Secretary of State Jocelyn Benson and SBA Administrator Isabel Casillas Guzman, the agreement is a “first-of-its-kind collaboration” for the federal agency and is expected to run through Jan. 1, 2036 — if the legal challenges can’t stop the apparently unconstitutional “understanding.”
The MOU calls for Michigan’s Department of State to create a “unique URL for the SBA to use to drive online visitors to register to vote.” The SBA’s Michigan field office will also let state department officials do in-person voter registration drives at SBA outreach events. It’s one of many “partnerships” between federal and state agencies and third-party actors.
Kaardal said an analysis of what is known of the federalized voter registration plan found it explicitly targets 15 traditional Democrat and left-leaning voter groups, and only voting-age people who “interact” with federal agencies are to receive voter registration information.
“They’re trying to get the procedures in place. Later, the conditions will come,” the attorney said, adding that the conditions may very well be that small businesses, for instance, will have to provide voter registration information to their employees. Kaardal noted Michigan city ordinances that mandated landlords provide new tenants with voter registration information. On the threat of First Amendment lawsuits, the ordinances have been rolled back.
‘Executive Fiat’
In January, Pennsylvania Republican lawmakers led by Rep. Dawn Keefer, R-York County, sued Biden, Shapiro, and Pennsylvania’s Secretary of State, charging that federal and state election-related actions are an overreach of executive power and a usurping of the constitutional authority of state legislatures to prescribe the “Times, Places and Manner of holding Elections…”
“[A]ll agency action in conformity with [EO] 14019 is without congressional delegation or funding, and conducted merely by executive fiat,” the lawsuit asserts.
Keefer has said the orders have “victimized” Pennsylvania citizens because they have “made changes to election laws with no authority to do so.”
“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 leader of the legislature’s Freedom Caucus said when the lawsuit was filed.
Middle Pennsylvania District Court Judge Jennifer P. Wilson, a Trump appointee, granted the Biden administration’s motions to dismiss because of the “Plaintiffs’ lack of standing to raise the claims at issue.” The district court judge cited rulings from the U.S. Supreme Court and the U.S. 3rd Circuit Court of Appeals that found “individual legislators did not have standing to bring a challenge to an action that allegedly injured the legislature as a whole.”
“…Plaintiffs have alleged only an institutional injury resulting from ‘a general loss of legislative power,’” the judge wrote in her decision. “A vague, generalized allegation that elections, generally, will be undermined, is not the type of case or controversy that this court may rule on under Article III.”
Keefer said Wilson’s decision was not on the merits of the lawsuit but on a technicality. She told The Federalist that she and her fellow plaintiffs “believe we absolutely have standing.”
Attorneys for Shapiro also argued that the General Assembly gave the state executive branch authority to issue elections actions through previous laws. Keefer told The Federalist that Shapiro’s unilateral decision to implement automatic voter registration and the Pennsylvania Department of State’s voter roll decisions conflict with state law.
“While we do delegate authority, at no time do we delegate the authority or power to not follow the law,” Keefer, who serves as chairwoman of the House’s State Government Subcommittee on Campaign Finance and Elections, told The Federalist on Monday in an interview.
She said “Bidenbucks” and its use of third-party groups also violates a state law passed in the wake of the 2020 election banning “Zuckbucks” — private and nonprofit organizations’ involvement in election administration.
‘Smacks of Suspicion’
Kaardal says the lawsuit specifically deals with state lawmakers and their powers under the Constitution’s elections clause. Those questions, the attorney said, remain unsettled.
In a memorandum of opposition, Biden’s U.S. Department of Justice argues the Pennsylvania lawmakers claim Biden issued his executive order without congressional authorization. Congress’s approval was unnecessary, the DOJ attorneys argue, noting, “The authority of the President to control and supervise executive policymaking is derived from the Constitution.”
Indeed. But states also have election-related authority under the Constitution, and Biden’s federalization of election registration interferes with those powers, the plaintiffs contend.
Kaardal said the DOJ’s brief is a “huge tell” in which they concede Biden’s fiat is not connected to any law passed by Congress.
“That the president is only going forward on Article II authority doesn’t pass muster on the elections clause,” the attorney said.
Stewart Whitson of the Foundation for Government Accountability has called the Pennsylvania challenge to Bidenbucks “the MOST important election integrity lawsuit in the country.”
Perhaps that’s because it’s reportedly the only lawsuit taking on Biden’s election meddling. Why? Kaardal said a lot of red-state legislatures, attorneys general, and secretaries of state “have been spineless.” He called Keefer and her 25 legislative colleagues “brave patriots” who are saying, “It’s upon us to take this on.”
Keefer said the GOTV end-around by Biden and Pennsylvania Democrats only serves to further erode voter confidence in elections. The Biden administration has refused to release thousands of pages of internal records related to his executive order. The Foundation for Government Accountability filed the lawsuit demanding the release of the documents.
“If you’re trying to engender voter confidence, why wouldn’t you be transparent,” the lawmaker said. “With the president and this executive order having these agencies engage with third parties and we’re not privy to who those third parties are or what that contract is or how much money is involved, it all smacks of suspicion.”
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
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