DV Journal

With early voting beginning in September, lawyers for 27 Pennsylvania legislators are asking the U.S. Supreme Court for an expedited appeal of a federal court’s decision to throw out an ongoing election case.

The “Bidenbucks” case, brought by lead plaintiff Rep. Dawn Keefer (R-York) and other members of the Pennsylvania Freedom Caucus, claims President Joe Biden’s executive order requiring government agencies to get involved in registering voters is unconstitutional.

The legislators also contend Gov. Josh Shapiro’s executive order changing the state’s motor voter law that automatically registers people to vote unless they opt out — as opposed to allowing would-be voters to opt in, the practice before Shapiro’s order — is unconstitutional.

In March, U.S. District Court Judge Jennifer Wilson ruled the legislators did not have “standing” to bring the case.

Stewart Whitson, legal director  of the Foundation for Government Accountability, called this Pennsylvania case “the most important election integrity case in the country.”

In an interview with DVJournal, lawyer Erick Kaardal with Mohrman, Kaardal and Erickson, who represents the Republican legislators, said they “have a duty to regulate the time, place and manner of elections. And the president has usurped the lawmaking authority of the Pennsylvania state legislators.”

At issue is Biden’s order requiring all federal agencies to develop a plan to increase voter registration and increase voter participation or get-out-the-vote efforts.

Acting on Biden’s order, the U.S. Department of Health and Human Services announced federal health centers nationwide, including Pennsylvania, get involved in voter registration activities. The Department of Education’s “Dear Colleague” letter to universities, including those located in Pennsylvania, directing them to use Federal Work Study funds “to support voter registration activities,” whether they occur “on or off-campus.”

U.S. Department of Housing and Urban Development likewise instructed more than 3,000 public housing authorities, which manage approximately 1.2 million public housing units across the country, including Pennsylvania, to run voter registration drives in those units, the suit said.

The suit said other agencies, such as the Department of Agriculture and the General Services Administration, began similar initiatives. The GSA, which administers federally owned buildings, including those located in Pennsylvania, is now available for voter registration drives by third-party organizations.

Kaardal said the time, place, and manner of elections are the responsibility of the state legislatures, with the governor vetoing or signing bills or Congress passing legislation. He said the president is not empowered to make changes to election law through executive actions.

“Back when the constitution was framed and ratified, remember we’re not talking about the Bill of Rights here. We’re talking about the Article One of the constitution, the elections clause. The elections clause was written so presidents could not use federal agencies to help a president get reelected.

“President Biden is saying, ‘I can use the agencies to register voters,’ and we’re saying, ‘That’s not what the constitution says,’” said Kaardal. “For the country, it’s really important that the Supreme Court takes [the case] and decides the standing issue so we can get on with the injunction against the executive order because it’s just a brazen violation of the elections clause.

“It’s President Biden usurping the lawmaking authority of both the state legislatures and Congress,” said Kaardal.  And that executive order is “very focused on certain demographic groups. We don’t want federal agencies weaponized to do voter registration drives and get out the vote on particular demographic groups.”

That’s a violation of the equal protection clause, he said.

In his petition to the Supreme Court, Kaardal said that after the 2020 election, where “more than $400 million of Zuckerberg-Chan Foundation donations that were selectively distributed to by partisan third party, non-governmental organizations,” the Pennsylvania legislature wrote a law to prevent this.

Pennsylvania received more than $20 million of the “Zuckerbucks” ahead of the 2020 election, with Delaware County garnering $2.2 million.

Kaardal believes the high court will rule on his petition next week.

Please follow DVJournal on social media: Twitter@DVJournal or Facebook.com/DelawareValleyJournal

The results of the May 16 primary are slated to be certified Thursday, June 1.

Not so fast, says Joy Schwartz, a Republican candidate for Delaware County Council.

She requested permission to count the envelopes that the mail-in ballots were sent in. The county denied that request, despite what she claims is clear language under Act 77, the 2019 law that permits mail-in voting.

“They’ve basically denied people those records for five or six different election cycles,” said Schwartz. “In 2020 twice, twice in 2021, twice in 2022, and now again in 2023. So, I am a candidate, running unopposed (in the primary), but I wanted to get ahead of this now because I don’t want to have this fight in November, after the fact.”

Her representative, who was present during ballot “canvassing” at the county warehouse, told her the stack of mail-in ballots was much higher than the stack of envelopes those ballots came in.

“I want to see if the number of outer envelopes matches the number of mail-in ballots,” said Schwartz. “If they have fewer envelopes than mail-in ballots, that’s a huge problem. That has to be investigated.”

But, Schwartz said, she does not have to give a reason to look at the envelopes since those are public records.

John McBlain, a member of the county Election Board and a lawyer, wrote to  County Elections Director James Allen, saying, “25 PS Section 2648 indicates the Board must keep its records open to public inspection and allow for inspections of the records’ during ordinary business hours, at any time when they [the records] are not necessarily being used by the board, or its employees having duties to perform thereto.’

“I do not believe these envelopes are in use by the Board or our employees at this time,” McBlain added.

“Second, it is irrelevant what the motivation is for wanting to examine records. The Board’s response to a statutory duty should not be formed by whether we believe the motivation for the request is valid or supported by a factual basis.

“I, too, have expressed to the requestor that I have no reason to believe the underlying premise that a voluminous amount of mail-in ballots were added and/or that there were a number of mail-in ballots processed that did not arrive in outer envelopes. Nonetheless, it is the public’s right to examine the Board’s documents even if the Board believes such an exercise is a fool’s errand. I believe the Board should make its records as transparent as possible, especially to disprove any unsubstantiated gossip,” McBlain wrote.

McBlain, the minority Republican member, did not respond when DVJournal asked whether he planned to vote to certify the results.

“I’m concerned. I’m exercising my right to see those records,” said Schwartz, a retired American history and civics teacher who taught in the William Penn School District.

Allen disagreed with Schwartz’s interpretation of the law and told her via email that the county made the online mail-in voter list available through the Department of State.

“As an authorized representative, you do not have access to go through the envelopes, which is consistent with the directive from the Department of State that you possess and presented to me in an earlier email.

“The following are among the reasons this request to go through the envelopes at this time is being denied: As Mr. Agovino noted, we are extremely busy and have various tasks to complete as part of the canvass leading up to the certification on Thursday. We do not have the staff to sit one-on-one with you or any other individuals who want to participate.”

Also, “we have one pending recount, and we have other matters that may result in recounts, and we cannot disturb the election materials prior to the completion of (1) the canvass and certification and (2) any necessary recounts. That would be patently unfair to the candidates and would violate basic standards that those campaigns should expect for chain of custody prior to the certification. The deadline was May 12 to file objections to any absentee or mail-in ballots. The review of the physical envelopes serves no legally required function at this time and is not part of the section of Act 77 that you clearly misquoted,” Allen said.

Allen told Schwartz that she could look at the envelopes after the election was certified.

“So, this is their modus operandi, to operate in the dark and to keep people out,” said Schwartz. “It’s got to be challenged.”

Asked to respond, a county spokeswoman said, “The county continues to comply with all requirements of state law. The candidate is misinterpreting the relevant sections of Act 77 and the Election Code.”

Election Integrity activists have led the attack on Pennsylvania’s current voting law and, specifically, they want its validation of no-excuse absentee ballots to be eliminated.

Regardless as to whether Senate candiate Dave McCormick’s electoral challenge will salvage his political effort after a recount, his lawsuit must be supported, for it provides a shortcut to kill Act 77.

In January, the Commonwealth Court ruled Act 77 was unconstitutional, reasoning that I vigorously supported.

Yet, this issue is stuck in the PA Supreme Court, probably due to “politics” because its Democrat-majority can’t discern a cognizable method to refute these analyses.

Recently, the Third Circuit Court of Appeals ruled it’s “immaterial” that the outside envelope of an absentee ballot be dated; its timely return could easily be validated by noting the postmark and confirming the date when it had been received by the county election officials.

This mandate is in Act 77:  “Section 1306.  Voting by Absentee Electors.–(a)  … The elector shall then fill out, date and sign the declaration printed on such envelope.”

Pivotal is its non-severability clause:  “Section 11. … If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”

Litigating this via the federal court precludes the ability of the Pennsylvania Supremes to be dilatory when faced with an obvious glitch in the law; it’s doubtful that the SCOTUS would intervene when the lower court had already ruled.

This is black-letter language that seemingly provides no legal wiggle-room. Thus, dumping Act 77 “ab initio” [from the date when it was signed] would invalidate non-excuse absentee voting.

Some people enjoy the convenience of mail-in voting, but they ignore the traditional reasons for functioning as citizens and the unnecessary introduction of fraud in the absence of voter/photo-ID.

This has been the cause célèbre of electoral reform advocates, for it carries profound implications.

Follow us on social media: Twitter: @DV_Journal or Facebook.com/DelawareValleyJournal