The U.S. Supreme Court. (Win McNamee/Getty Images)
The U.S. Supreme Court said Monday it would not hear an appeal by members of the Pennsylvania Freedom Caucus in a challenge of Gov. Josh Shapiro’s order implementing automatic voter registration in the commonwealth.
Members of the Freedom Caucus led by state Rep. Dawn Keefer (R-York) asked the court to intercede in the case before the Philadelphia-based U.S. 3rd Circuit Court of Appeals ruled in the case, which also challenged an executive order by President Joe Biden directing federal agencies to work with third-party organizations to improve ballot access across the country.
The high court’s decision sets the stage for arguments before the 3rd Circuit in December, after the Nov. 5 presidential election, in a case that would clarify which branches of government have the power to make election law under the U.S. Constitution, attorney Erick G. Kaardal said.
Kaardal, a Minneapolis attorney representing the Freedom Caucus, said the case would clarify questions that remained after the Supreme Court last year rejected arguments by Republican lawmakers in North Carolina that the Constitution gives exclusive authority to state legislatures to regulate elections in their states.
“This lawsuit is important not because of what the election laws are but because of who makes the laws,” Kaardal told the Capital-Star.
Shapiro’s office and the White House did not immediately respond to a request for comment.
The Freedom Caucus filed the lawsuit in January. Keefer’s office did not respond to an email seeking comment.
It argued that the U.S. Constitution grants the power to state legislatures to “determine the time, place, and manner” of conducting elections in their respective states. U.S. District Judge Jennifer P. Wilson in March granted motions by state and federal officials to dismiss the case. The Freedom Caucus filed the appeal in April.
The suit claims that Biden, Shapiro and Secretary of the Commonwealth Al Schmidt usurped the power of individual state lawmakers whose votes in a complex legislative process would be sufficient to defeat or pass legislation. It argues that rather than considering the majority needed to defeat or pass legislation in a final vote, a single lawmaker’s vote could decide the fate of a bill in a committee.
It challenged 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 claimed 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. The law was inspired by Facebook founder Mark Zuckerberg’s offer of money — dubbed “Zuckerbucks” by critics — to counties to aid in election administration.
It also challenged 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 centers, unless they opt out.
And the suit challenged a 2018 directive from former Gov. Tom Wolf 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.
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