Biden order on voter registration tells federal agencies to follow laws, not break them

A New York lawmaker has joined other Republicans taking fresh aim at a 3-year-old executive order from President Biden. U.S. Rep. Claudia Tenney claims the order violates the law limiting federal employees from engaging in partisan political activity and requires federal offices to illegally collect ballots. 

Experts on election law say that’s a false interpretation of Biden’s order which was designed to promote information about voter registration.

Tenney, a Republican seeking re-election in a district that reaches from the North Country into Western New York, claimed on Facebook that Biden's executive order "requires our taxpayer-funded federal agencies to violate the Hatch Act and engage in illegal vote harvesting."

The Hatch Act limits partisan political activity by federal employees and by state and local employees who deliver federally funded programs during work hours and bans them from using government offices and resources. 

We wondered how this order could require federal employees to engage in partisan political activity and illegally harvest votes. 

"Ballot harvesting" or "vote harvesting" is a term often used by people in a pejorative way to refer to collecting completed absentee ballots and submitting them. Some voting rights experts see the term "ballot harvesting" as pejorative and prefer the term "ballot collection." Many states allow at least certain individuals to collect some ballots 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 such as military recruiting offices, state motor vehicle departments and federal agencies. 

The National Voter Registration Act specifies that voter registration activities must be nonpartisan and that the "person providing assistance at a voter registration agency cannot attempt to influence an applicant’s political preference or party registration" or make an applicant believe that public benefits or services are dependent on decisions related to their registration, according to the Congressional Research Service. 

Biden’s order states that "the head of each agency shall evaluate ways in which the agency can, as appropriate and consistent with applicable law, promote voter registration and voter participation." These activities include updating websites and other public-facing materials with information on how to register to vote, how to request a vote-by-mail ballot, and how to cast a ballot in upcoming elections, and pointing visitors to their own states’ election information. 

A state can request that federal agencies be designated voter registration agencies, under the order, and states must approve of any such designation. Military recruitment offices are already voter registration agencies under the National Voter Registration Act. 

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

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

"The order has nothing to do with ‘ballot harvesting,’ in any way that term could be defined," 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 is merely an order authorizing federal agencies to cooperate with the states to provide voter registration opportunities to all citizens through those agencies."   

Harvesting can be a scary word, conjuring up images of collecting ballots from people against their will or collecting fraudulent ballots. But ballot distribution and collection is still run by the states under this order, said Jonathan Diaz, director of voting advocacy and partnerships at the Campaign Legal Center, a nonpartisan organization that promotes voting. Trevor Potter, a Republican and former chairman of the Federal Election Commission, founded the legal center. 

"This is not directing federal agencies to do anything in support of a candidate or party or ballot initiative," Diaz said. 

The U.S. Office of Special Counsel issued two opinions in the early 2000s about whether voter registration drives in federal offices violate the Hatch Act. The office has found that registration drives organized by nonpartisan organizations are allowed. Partisan drives, those with a goal of helping a party or candidate, are not allowed. 

"Nonpartisan voter registration is not partisan, and therefore is not a problem under the Hatch Act," said Sean Morales-Doyle, director of the Voting Rights Program at the Brennan Center for Justice. 

Tenney claimed that Executive Order 14019 "requires our taxpayer-funded federal agencies to violate the Hatch Act and engage in illegal vote harvesting." Her use of the words "requires" and "violate" are not suggestions of what the order could do. They are strong words, but they are wrong.  

The order calls on federal agencies to expand voter registration activities and to do so within the bounds of the law. The Hatch Act prohibits partisan political activities in government offices. Promoting voter registration to would-be eligible voters who come in contact with federal agencies is not a partisan activity. The order does not require federal agencies to violate the Hatch Act. 

The order also does not call for federal agencies to collect any ballots, so the claim of illegal vote harvesting is baseless. 

This statement makes a ridiculous claim, and we rate it Pants on Fire!