House Republicans Ask US Supreme Court To Consider Radical Theory to Upend American Elections

WASHINGTON, D.C. — Eleven Republican members of the U.S. House of Representatives are asking the U.S. Supreme Court to consider the independent state legislature theory — a radical legal theory that could upend American elections. 

“The [executive order] will create an environment for widespread voter fraud,” a brief by sitting Republican members of the U.S. House of Representatives challenging President Joe Biden (D) and Gov. Josh Shapiro (D)’s pro-voting initiatives reads. 

If adopted by the Supreme Court, the ISL theory could mean that only state legislatures can regulate federal elections. In practice this could mean that all other parts of state government  — not by governors, the courts, the people or even state constitutions themselves — would not be able to set the rules governing elections, only state legislatures. Last June, the Supreme Court rejected this theory in a 6-3 decision in Moore v. Harper

Back in January, Republican state legislators from the Keystone State filed a lawsuit alleging that Biden’s Executive Order 14019, which was passed in 2021 to promote voting access, violates the U.S. Constitution. The executive order directs the federal government to look into a variety of efforts to expand voting rights, including making federal workers and resources available to help staff polling locations as well as allowing federal agencies to share data with states that wish to establish automatic voter registration efforts.

On March 26, the court dismissed the case for lack of standing, but in late April, the Republican plaintiffs asked the U.S. Supreme Court to take up their case while an appeal is still pending in the 3rd U.S. Circuit Court of Appeals. 

Arguing that only Congress “can enact federal laws preempting state legal provisions regulating the times, places, and manner of Congressional elections,” Republican legislators argue that Biden’s executive order and other challenged policies cannot be implemented in Pennsylvania. 

Now, 11 members of the House, four of whom are not even from Pennsylvania, are parroting this argument. In their ‘friend of the court’ brief submitted Tuesday afternoon, 11 House members — Reps. Dan Meuser (R-Pa.) Scott Perry (R- Pa.), Claudia Tenney (R-N.Y.), Guy Reschenthaler (R-Pa.), Mike Kelly (R-Pa.), Glenn “GT” Thompson (R-Pa.) , John Joyce (R-Pa.), Lloyd Smucker (R-Pa.), Andy Ogles (R-Tenn.), Rich McCormick (R-Ga.) and Randy K. Weber (R-Texas)  — argue that the power for regulating federal elections lies solely with state legislatures with limited congressional oversight. 

“The Elections Clause of the United States Constitution places primary responsibility for deciding ‘Times, Places and Manner of Holding Elections’ squarely within the authority of the state legislatures with limited oversight from Congress,” the Republican members’ brief reads. 

When the U.S. Supreme Court previously considered a radical independent state legislature theory case out of North Carolina, not a single Republican member of the House submitted a friend of the court brief in that case. Now, Republicans are becoming even more brazen in their support for radical legal theories. 

Despite the fact that widespread fraud is not factually supported by evidence, Republicans echo the popular Trump disinformation that mail-in voting is susceptible to fraud and argue that the executive order in question will make elections more susceptible to fraud. “It is well documented that mail-in voting is the method of voting that is most susceptible to fraud. Consequently, the challenged [executive order] creates an even greater threat to the fairness of our elections,” the brief reads. 

After the Supreme Court rejected this theory in its decision in Moore v. Harper, Republicans have been trying to advance the idea; this time, their vehicle is a case out of Pennsylvania which could have implications for the 2024 presidential election. 

Learn more about the radical independent state legislature theory here. 

Read Republican members’ amicus brief here. 

Learn more about the case here.