Republicans and conservative activists have increasingly been targeting an executive order issued three years ago by the Biden administration intended to boost voter registration, claiming it’s unconstitutional and an attempt to interfere in the November election.
A recent fundraising email sent by a GOP political action committee is an example of how they are framing the order, saying it compels federal agencies “to act as Biden’s personal ‘Get-Out-The-Vote’ machine.” A Republican-led House committee recently issued subpoenas to agency directors and a group of GOP secretaries of state asked the Supreme Court to take up a case challenging the order.
Despite the pushback on the right, there has been no indication the order favors voters of one party over another.
White House spokesperson Robyn Patterson said the administration will continue to protect the voting rights of eligible citizens regardless of political affiliation. Biden issued the order in 2021 as GOP-led legislatures across the country were debating a wave of state voting restrictions amid the false claims that widespread fraud had cost former Republican President Donald Trump reelection.
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Here’s a look at what the order does, what federal agencies have done so far to comply with it and what Republicans are saying about it.
Intended to make voting easy
Biden issued the executive order on March 7, 2021, noting the federal government’s “duty to ensure that registering to vote and the act of voting be made simple and easy for all those eligible to do so” and that it would be implemented “consistent with applicable law.” Agency leaders were asked to submit a strategic plan within 200 days.
The order directed updates to the federal website vote.gov, including ensuring that voting information be made available in more than a dozen languages. The site is not engaged in registering voters directly, but instead connects visitors with state and local election offices to begin the registration process.
The order specifically mentions the Department of Defense and asks it to establish procedures to provide active-duty military personnel the opportunity each year to register, update their voter registration information or request an absentee ballot.
It also directs the Department of Justice to provide educational materials about registration and voting to those in federal custody as they prepare to be released, along with information about rules that might prohibit them from voting.
Republicans question approach
A year after the order was issued, congressional Republicans sent a letter to the White House raising concerns that the administration exceeded its authority and was directing federal agencies to engage in activities beyond their mission.
Republicans said the U.S. Department of Agriculture’s Food and Nutrition Service informed state agencies that the costs of providing voter registration services were allowable administrative expenses under the Supplemental Nutrition Assistance Program and could be “reimbursed at the 50 percent level.”
What the letter didn’t say, according to a former White House official who helped implement the order, is that states administer the food assistance program and that states were specifically directed to provide voter registration information under a federal law passed years ago.
Justin Levitt, who served as a senior policy adviser at the White House, also said the agency was only reiterating previous guidance that those expenses were reimbursable. A few months later, Republicans sent letters to federal agencies requesting information about their plans to comply with the order. They also included repealing the executive order in a broad elections bill they introduced last year.
In May, the chairman of the Committee on House Administration sent letters requesting documents related to the order and set a two-week deadline to comply. The chairman, Wisconsin Republican Rep. Bryan Steil, then issued subpoenas. He called the federal order “another attempt by the Biden Administration to tilt the scales ahead of 2024.”
A White House official said the Office of Management and Budget had sent an initial response and other agencies were working on responding to the committee when it issued the subpoenas.
The order requires state buy-in
While federal agencies have not published their proposals, they have announced steps they’ve taken to comply with the order.
Levitt, a lawyer and expert on constitutional law, described the order as ground breaking but limited in scope. Though federal law allows agencies to help with voter registration, he said military recruitment offices were the only ones doing it before Biden issued the executive order. He also said a federal agency can do this only if a state requests it.
Kansas and New Mexico designated two Native American colleges run by the U.S. Department of Interior as voter registration agencies. Kentucky and Michigan have said they will designate Veterans Administration offices in their states. Michigan also plans to add offices of the federal Small Business Administration.
GOP secretaries of state ask high court to step in
A group of Republicans who serve as their state’s top election officials also are critical of the order, calling it federal overreach into states’ administration of elections.
West Virginia Secretary of State Mac Warner sent a letter in May 2022 asking Biden to rescind it and spoke against it when testifying before Congress last year. A few months ago, he issued a statement saying his state would refuse to accept any voter registration forms collected by federal agencies.
In May, Warner joined eight other GOP secretaries of state to file a brief in the U.S. Supreme Court asking the justices to take a case challenging the order. The others were from Arkansas, Indiana, Louisiana, Mississippi, Montana, New Hampshire, Tennessee and Wyoming.
The court rebuffed a plea to take up and decide the case by the end of June, and won’t consider it for the first time until the justices’ first private conference in early fall. In the event the court agrees to hear the case, arguments wouldn’t take place before early next year.
‘Innocuous as an order gets’
Republicans who oppose the executive order have labeled it “Bidenbucks,” an apparent reference to the controversy that erupted after the 2020 election when Facebook founder Mark Zuckerberg provided more than $350 million to a nonprofit that was later distributed to election offices. Republicans claimed the “Zuckerbucks” effort was an attempt to benefit Democrats.
David Becker, a former Justice Department lawyer who leads the Center for Election Innovation & Research, said the timing of the ramped-up criticism — years after Biden issued the executive order and just months before the presidential election — is noteworthy.
“It’s being portrayed as some deep-state power grab, when in reality it’s an effort to ensure that eligible citizens who are engaging with the federal government can easily register or have their registration updated,” Becker said. “It is as innocuous as an order gets.”
