Pennsylvania Republicans face uphill battle in automatic voter registration appeal 

PHILADELPHIA (CN) — A group of conservative state lawmakers arguing against automatic voter registration in Pennsylvania faced skepticism from Third Circuit judges Thursday at an appeals hearing as they fought to revive their federal claims.

“This case is about standing and limitations on the executive branch, and I’m concerned that the executive branch doesn’t want federal judicial scrutiny over who’s making the rules affecting your elections,” Minneapolis-based attorney Erick Kaardal told the panel, representing 27 members of the Pennsylvania Freedom Caucus.

Led by Republican state representative Dawn Keefer, the caucus faulted President Joe Biden and Pennsylvania Governor Josh Shapiro, both Democrats, for supporting automatic voter enrollment in Pennsylvania, calling the move a blatant power grab.

Biden in 2021 issued an executive order directing federal agencies to partner with third-party organizations to boost voter registration and access. In doing so, the Pennsylvania Freedom Caucus argues, the president overstepped the power of the executive branch and infringed on the Pennsylvania General Assembly’s authority to “determine the time, place, and manner” of conducting elections.

The group also takes issue with a September 2023 executive order by Shapiro implementing automatic voter registration in Pennsylvania through the state government’s transportation department, PennDOT.

In March 2024, Harrisburg-based U.S. District Judge Jennifer Wilson granted motions by state and federal officials to dismiss the case for lack of jurisdiction.

The caucus appealed the following month.

U.S. Circuit Judge Peter Phipps, a Donald Trump appointee, told the caucus Thursday that individual legislators did not have standing to bring their action in federal court.

“A lot of your arguments would make a ton of sense to me if you showed up and said, ‘My client is the Pennsylvania General Assembly. It’s a Pennsylvania legislature,’” Phipps said. “What the Constitution doesn’t say is ‘individual state legislators.’ And so there’s a gap. You don’t bridge the gap.”

The argument, the judge added, “would be a lot stronger if for some reason the federal defendants or the state defendants somehow prevented your clients from voting” on the automatic registration bill.

Speaking for the federal government, Department of Justice attorney McKaye Neumeister echoed Phipps’ sentiments.

“The legislators would have to point to a specific legislative act that should have passed, but was not passed because their votes were not properly counted within the legislative process. That’s simply not what they’re alleging in this case,” Neumeister said.

Phipps did, however, question where legislators could take up a case like this if not federal court.

“You could understand their sentiment that, wait, you know, maybe the elections clause is a hollow promise for us, if what’s given to us can’t be enforced,” Phipps said, explaining that he was trying to take the “strongest form of their case.”

Jacob Boyer, deputy general counsel for Pennsylvania, replied in turn. “I think that is the strongest form of their case — and it is one that the Supreme Court and its courts have repeatedly rejected,” he said.

“The outcome that was consistent with the legislative process,” the state attorney added.

U.S. Circuit Judge Arianna Freeman, a Biden appointee, clarified that in order to have federal standing, the executive branch would have had to “somehow” put the automatic voter registration bill “on the floor” with the legislators bypassing the aforementioned process.

U.S. Circuit Judge Cindy Chung, another Biden appointee, rounded out the panel Thursday.