Biden’s executive order on voter registration directs federal agencies to follow the law, not break it

A New York lawmaker has joined other Republicans in a renewed attack on President Biden’s three-year-old executive order. U.S. Rep. Claudia Tenney says the order violates a law that restricts federal employees from engaging in partisan political activity and requires federal offices to illegally collect votes.

Election law experts say that is a misinterpretation of Biden’s executive order, which was intended to spread information about voter registration.

Tenney, a Republican running for re-election in a district stretching from the North Country to western New York, said on Facebook that Biden’s executive order “requires our taxpayer-funded federal agencies to violate the Hatch Act and engage in illegal ballot harvesting.”

The Hatch Act restricts partisan political activity by federal, state and local employees who carry out government-funded programs during working hours and prohibits them from using government offices and resources.

We wondered how this order could compel federal employees to engage in partisan political activities and illegally collect votes.

“Ballot harvesting” or “ballot harvesting” is a term that people often use in a derogatory way to refer to the collection of completed mail-in ballots and their transmission. Some election law experts consider the term “ballot harvesting” to be derogatory and prefer the term “ballot collection.” Many states allow at least some people to harvest votes on behalf of others.

Biden signed Executive Order 14019 on March 7, 2021. It builds on a 1993 law, the National Voter Registration Act, which aimed to expand opportunities for eligible voters to register at places like military recruiting offices, state departments of motor vehicles and federal agencies.

The National Voter Registration Act mandates that voter registration efforts must be impartial and that “a person providing assistance to a voter registration agency shall not attempt to influence an applicant’s political preferences or party registration” or mislead an applicant into believing that public benefits or services are contingent upon his or her registration decisions, according to the Congressional Research Service.

Biden’s order states that “the head of each agency will evaluate ways the agency can, as appropriate and consistent with applicable law, promote voter registration and participation in elections.” These actions include updating websites and other publicly available materials with information about how to register to vote, how to request an absentee ballot, and how to vote in the upcoming election, as well as directing visitors to election information in their own states.

A state may request that federal agencies be designated as voter registration agencies, as specified by regulation, and states must approve such designation. Military recruiting offices are already voter registration agencies under the National Voter Registration Act.

We reached out to Tenney’s office for evidence of her claim, and a spokeswoman told us the executive order directs federal agencies that employ political appointees to promote voting access. The Hatch Act prohibits civil servants in the executive branch from engaging in political activity, and by using civil servants to “handpick” who they register to vote, the Biden administration is engaging in illegal vote harvesting, she said.

Experts we spoke with said the ordinance does not violate the Hatch Act and does not lead to vote harvesting.

“The regulation has nothing to do with ‘ballot harvesting,’ in any way that you might define that term,” said David J. Becker, executive director and founder of the Center for Election Innovation & Research, a nonpartisan organization that works with election officials from both political parties. “It’s simply a regulation authorizing federal agencies to work with states to ensure that all citizens have voter registration through those agencies.”

Harvesting can be a scary word, conjuring images of people being forced to vote against their will or of fraudulent ballots being collected. But ballot distribution and harvesting are still being conducted by states under the order, said Jonathan Diaz, director of election advocacy and partnerships at the Campaign Legal Center, a nonpartisan voting advocacy group. Trevor Potter, a Republican and former chairman of the Federal Election Commission, founded the legal center.

“This is not ordering federal agencies to do anything on behalf of a candidate, party or referendum initiative,” Diaz said.

The United States Office of Special Counsel issued two opinions in the early 21st century on whether voter registration drives at federal offices violate the Hatch Act. The office found that registration drives organized by nonpartisan organizations are permitted. Partisan drives, designed to help a party or candidate, are not.

“Non-partisan voter registration is a nonpartisan issue and therefore not an issue under the Hatch Act,” said Sean Morales-Doyle, director of the Voting Rights Program at the Brennan Center for Justice.

Our ruling

Tenney argued that Executive Order 14019 “requires our taxpayer-funded federal agencies to violate the Hatch Act and engage in illegal voter harvesting.” Her use of the words “requires” and “violates” is not a suggestion of what the order would do. Those are strong words, but they are wrong.

The order calls on federal agencies to expand voter registration efforts and do so within the law. The Hatch Act prohibits partisan political activity in government offices. Promoting voter registration among potential eligible voters who come into contact with federal agencies is not partisan activity. The order does not require federal agencies to violate the Hatch Act.

The regulation also does not call on federal agencies to collect votes, so the accusation of illegal vote collection is without merit.

This statement contains an absurd claim and we rate it “Pants on Fire!”