Mississippi among States challenging Biden’s Executive Order on voter registration

• The 2021 order directs federal agencies to develop plans to register voters. A group of States, including Mississippi, say the order infringes on their sovereign interest in regulating elections.

Mississippi officials are challenging an Executive Order signed by President Joe Biden (D) in 2021, claiming the order illegally directed an all-of-government voter registration effort by federal agencies led by the White House. 

Executive Order (EO) 14019 on Promoting Access to Voting directs federal agencies to develop plans to register voters at the State level without first consulting the States. Included among the actions directed by Biden are:

• distributing voter registration and vote-by-mail ballot application forms, and providing access to applicable State online systems for individuals who can take advantage of those systems.
•  assisting applicants in completing voter registration and vote-by-mail ballot application forms in a manner consistent with all relevant State laws.
• soliciting and facilitating approved, nonpartisan third-party organizations and State officials to provide voter registration services on agency premises.

Biden’s order also directs the U.S. Attorney General to establish procedures to provide educational materials related to voter registration and voting and to facilitate voter registration for all eligible individuals in the custody of the Federal Bureau of Prisons.

As Mississippi’s Chief Election Official, Secretary of State Michael Watson (R) said in a release earlier this year that he sent a letter to U.S. Attorney General Merrick Garland requesting information as to the scope of implementation of the order in Mississippi, voicing concerns regarding the lack of authority and threat to the integrity of Mississippi’s elections.

Additionally, Watson said he submitted a Freedom of Information Act (FOIA) request to the U.S. Department of Justice for any communication between their officials and any jail or detention facility in Mississippi.

In response, the federal agency said Watson’s FOIA request was overly broad.

What Mississippi’s officials are saying

Now, Governor Tate Reeves, Attorney General Lynn Fitch, and Secretary of State Watson – all Republicans who make up the State Board of Election Commissioners – have joined in a complaint on behalf of the State of Mississippi with the States of Kansas, Iowa, South Dakota, North Dakota, Nebraska, Oklahoma and South Carolina.

The group asserts in their filing in the U.S. District Court in Kansas that “President Biden has sought to convert the federal bureaucracy into a voter registration organization and to turn every interaction between a federal bureaucrat and a member of the public into a voter registration pitch.”

“That exceeds any authority executive entities have under federal law, violates the Constitution, threatens States’ attempt to regulate voter registration, and thus ultimately undermines the voter registration systems set up by the States,” the States claim. “In doing so, EO 14019 has ramifications not just for federal elections, but also for State elections. By its terms, EO 14019 would turn the federal bureaucracy into a voter-registration outfit to register voters for State and local elections as well as federal elections.”

In a statement released on Tuesday, Secretary Watson said from the day “this unlawful Executive Order (EO 14019) was signed, my team and I had hoped it was another Biden Administration word salad with no action.”

“Unfortunately, that was not the case. In 2022, several Secretaries of State and I sent a letter to the Administration asking them to stand down. Our office has since dug in to study the EO’s implementation and sent FOIA requests to ensure we had enough facts to file suit ending this absurd EO,” Watson said. “Thankfully, this day has come! We look forward to continuing to push as hard as we can to stop the use of taxpayer dollars for illicit means.”

Governor Reeves said the order is a prime example as to why the Biden-Harris administration “has been such a disaster.”

“They’re focused on everything except doing their job, and Americans are paying the price. Federal agencies should be prioritizing their core duties, not acting as an extension of the Democratic National Committee,” Reeves said. “It really goes to show just how far the Biden-Harris administration will go to expand their power, and it’s why Mississippi will continue pushing back when they violate the law.”

For her part, Attorney General Fitch said she fully supports encouraging voter registration and promoting an engaged electorate. However, Fitch said “putting the full weight of the Oval Office behind an effort first developed by partisan activist groups and then hiding the agency activities from public scrutiny goes too far.”

“The law does not allow it. Mississippi will not stand for it. The people deserve answers, and we demand accountability here with this suit,” Fitch added.

States claim Biden’s order is unconstitutional

The States are asking the U.S. District Court to find that the Biden order and federal agencies’ action to implement it are unlawful and unconstitutional, noting that States have plenary authority to regulate state elections.

“The Tenth Amendment guarantees the States’ authority to regulate state elections and voter qualifications, including voter registration for state elections. There can be no doubt that this is a sovereign interest,” the States contend, adding, “When it comes to federal elections, the Constitution vests in the States the power to establish voter qualifications and to regulate the time, place, and manner of elections subject to contrary congressional commands. Those are inherently sovereign acts.”

The States claim that the order undermines the regulatory structures they have created as a practical matter, infringing on the States’ sovereign interest in regulating elections in the manner of their own choosing.

“In sum, the existence of federally sanctioned, federally run voter registration operations infringes on Plaintiffs States’ ability to regulate their own electoral processes and set qualifications for electors,” the States’ argue. “Underlying EO 14019 is the claim that the federal government can run a voter operation with its immense resources, and then answer for the activities of its employees in that operation in the forum of its own choosing—assuming that it must answer for its activities at all. In doing so, the federal government becomes, in essence, an unregulated—or, at best, a lesser regulated—player in the state electoral process.”