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By Marilyn Odendahl
The Indiana Citizen
July 31, 2024

The letter Indiana Secretary of State Diego Morales sent to federal agencies in late June, telling them not to register voters without permission from his office, is reflective of the ongoing battle over the federal government’s role in elections.

Fueling the controversy is Executive Order 14019 signed by President Joe Biden in March 2021. The order directed federal agencies to evaluate ways, within the law, to promote voter registration and participation, including informing the public and providing materials on how to register to vote, requesting a vote-by-mail ballot, and casting a ballot in an election.  Also, the order called upon the agencies to look at providing access to voting through such ways as by distributing and helping applicants complete and file voter registration and mail-in ballot forms.

“It is the policy of my Administration to promote and defend the right to vote for all Americans who are legally entitled to participate in elections,” Biden’s order stated. “It is the responsibility of the Federal Government to expand access to, and education about, voter registration and election information, and to combat misinformation, in order to enable all eligible Americans to participate in our democracy.

Jonathan Diaz, director of voting advocacy and partnerships at the Campaign Legal Center, a left-of-center advocacy group whose focus includes voting and elections, said the executive order builds upon the National Voter Registration Act of 1993. The NVRA passed Congress with bipartisan support and included a provision that allowed state officials across the country to request federal agency offices in their state to distribute and collect voter registration forms, he said.

Through the executive order, Diaz said, the Biden administration is calling upon federal agencies to provide information about voter registration, requirements and resources to the people who visit their offices as part of the normal course of business.

“What this executive order does, really, is just make sure that the agencies and arms of the federal government are doing everything within their existing legal power to provide information and opportunities for every person that they interact with to register to vote,” Diaz said. “But it has to be done in conjunction with state laws and state procedures and state election officials.”

However, the executive order has become a target for Republican officials and conservative organizations, alleging the administration is trying to register more Democratic voters to shore up its chances for victory in November.

A lawsuit filed in the Northern Texas District Court in July by the America First Policy Institute, a conservative think tank closely aligned with Donald Trump, echoes those concerns with the order. In particular, the complaint asserts the executive order is a “radical expansion” of the federal government’s duties under the NVRA, encroaches on the states’ role in administering elections, and pushes efforts that are “impermissibly tailored “ toward registering people likely to vote Democratic.

Jason Snead, executive director of the Honest Elections Project, a conservative advocacy group pushing for more restrictive voting laws, called the executive order “unprecedented.” The concern with the order, he said, is that the Biden administration is meddling in the election by using federal resources to register and mobilize voters who favor keeping the White House in Democratic hands.

“There’s a division between smart politics, good policy work versus actually using everyone’s tax dollars to selectively and preferentially go out and register and turn out voters that are likely to vote” Democratic, Snead said. “I think this order tends to stray across the line into that latter camp.”

Diaz disputed any partisan intent to the executive order. He noted federal agencies do not provide services only to voters of a certain political orientation, nor do they ask the voters’ party affiliation before offering registration forms.

“This is, I think, well within the administration’s authority,” Diaz said. “If you actually look at the text of the executive order, it’s pretty carefully written to remain within the bounds of existing law and existing authorities, which is why … no one made a big deal of it when it was first enacted.”

Questions of election security and voter access

In his letter dated June 28, Morales, a Republican, asserted state authority over the administration of elections. The secretary of state’s office said the letter was sent to more than 120 federal agencies with operations in Indiana, although it did not identify those federal departments and offices.

Morales pointed to Indiana Code 3-7-18 and the NVRA and said each agency must be “specifically designated by the state” as a voter registration site to lawfully provide services to help voters register.  Also, he told the federal agencies that if they were distributing or assisting the public with voter registration or absentee voting forms, they were likely violating state and federal law, and had to stop immediately.

Being designated as a voter registration agency, Morales wrote, “is critical to assuring compliance with laws prescribing administration of voter registration and protecting the integrity of elections.”

In addition to the letter, Morales also traveled to Washington, D.C., in June and testified during a House Committee on Small Business hearing on the executive order. The Republican-led committee focused on a memorandum of understanding, which would allow the U.S. Small Business Administration to work with the Michigan Department of State in promoting voter participation.

Morales told the Republican-led committee that states know better how to run elections and the federal government’s involvement would not be welcome in Indiana.

Snead, the congressional committee and the America First Policy Institute all share the same concern with the executive order – that federal agencies will register voters who are ineligible to cast a ballot and are likely to support Democratic candidates. Even if the federal agencies demonstrated they were complying with the law, Snead said the U.S. government promoting voter participation would still be problematic because there would still be questions about what those agencies were doing.

In addition, he echoed the accusations of many Biden opponents that the administration is withholding information detailing the voter registration efforts.

One of the efforts to get information is being led by Rep. Bryan Steil, R-Wisconsin, chair of the Committee on House Administration. According to the Associated Press, Steil sent letters requesting documents related to the executive order in May and when the federal agencies did not comply by the two-week deadline, he issued subpoenas. The White House told the Associated Press the Office of Management and Budget had responded and other agencies were in the process of responding to the committee when the subpoenas were issued.

Snead said he does not know if the Biden administration actually is breaking the law through the push to register voters. But he remains skeptical, he said, of the White House’s motives and actions.

“In my judgment, I think that the better part of valor here would be for the administration to rescind the order altogether, or to have never issued it in the first place,” Snead said. “There’s really no place for the federal government to be doing this sort of work there.”

Diaz countered that the federal agencies are not circumventing the law or only registering those who affiliate with the Democratic Party. The federal departments and offices can make voter registration materials available and engage with the individuals more if designated as a voter registration agency by the state, he said.

Rather than based on any evidence of wrongdoing, the opposition to the executive order is mostly based on politics and philosophical differences, Diaz said. Some GOP state officials, leaders of conservative organizations and voters, he said, believe the registration of voters should be left to the states and the federal government should not be involved at all.

“I think the administration’s response, and what I would probably say as well, is that the federal government, because of existing law that was passed in the 1990s, does have some role and some responsibility to facilitate the registration of voters,” Diaz said.

Getting more Hoosiers to register and to vote

Morales boasted in his letter about his office’s varied efforts to register Hoosiers to vote. The secretary of state, he wrote, has conducted outreach campaigns online, distributed “thousands of voter information guides, pamphlets, and posters,” and hosted in-person voter registration efforts across the state at community events.

Still, Indiana’s voter participation rates remain very low.

The 2023 Civic Health Index noted voter registration and voter turnout is a “significant challenge” for Indiana. In the 2010 midterm elections, the state ranked 48^th in voting in the nation and by 2022, the state’s ranking had fallen to 50^th. Also, Indiana’s voter participation rate was 41.9%, more than 10 percentage points below the national rate of 52.2%.

The 2024 May primary did not bring any improvement with just 17% of eligible voters casting a ballot, according to Indiana secretary of state statistics.

Snead said states have done a “very good job” of balancing election security with ballot box access. Having a secure election process, he said, inspires people to participate because it sends the message that voting is important. Still, he conceded, voting cannot be so restrictive that voters are discouraged from registering and turning out.

Voting should be easy, but cheating should be difficult, Snead said, reciting his organization’s motto.

“I certainly think there’s a role for folks like secretaries of state to play in terms of encouraging people to participate, encouraging people to register and so forth,” Snead said. “There’s also a lot of work being done by nonprofit organizations that are focused on registering and mobilizing people to participate. But I don’t think that it’s appropriate for the federal government to be getting into that space. There’s just simply too many questions.”

Diaz conceded the public’s confidence in elections is faltering and that may be impacting people’s willingness to vote. He attributed the decline in trust to misinformation and the average citizen not knowing much about the nuts and bolts of how elections are run, but, he said, registration is still the key to the entire process. Registering to vote, he said, is the first step toward participation and getting more people onto the voter rolls will bring more voices into the political arena.

“Any efforts to increase participation or to reduce barriers to registration by providing more information or making resources more accessible, I think only improves the health of our democracy,” Diaz said. “People who are opposed to more participation, or to certain groups participating in elections, are naturally going to have a problem with that.”  

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.