Pennsylvania Republicans Ask US Supreme Court To Take Radical Challenge to Biden Executive Order

WASHINGTON, D.C. — Republicans are once again asking the U.S. Supreme Court to consider the radical independent state legislature theory — the theory that only legislatures can regulate federal elections. This time they are using a lawsuit out of Pennsylvania challenging executive actions by President Joe Biden and Gov. Josh Shapiro (D). 

President Joe Biden speaks during a campaign event in Philadelphia, Thursday, April 18, 2024, with members of the Kennedy family. (AP Photo/Matt Rourke)
President Joe Biden speaks during a campaign event in Philadelphia, Thursday, April 18, 2024, with members of the Kennedy family. (AP Photo/Matt Rourke)

Last week, GOP legislators filed a petition in the Supreme Court that asks the Court to reopen their lawsuit seeking to block new pro-voter policies under the independent state legislature (ISL) theory.  This comes after the district court dismissed their case back on March 26 and the Supreme Court already rejected the radical ISL theory last year .

After the lower court found that the legislators did not have standing, they appealed to the 3rd U.S. Circuit Court of Appeals.  Now, the legislators are asking the nation’s highest court to resolve this issue before the 2024 elections. In their petition, the Pennsylvania legislators argue that the district court should not have dismissed their case and the Supreme Court should consider their radical ISL challenge. 

At issue in this case is Biden’s Executive Order 14019, signed in 2021 to promote voting access and Gov. Shapiro’s recent enactment of automatic voter registration. Biden’s 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.

Republican state lawmakers argue that only Congress “can enact federal laws preempting state legal provisions regulating the times, places, and manner of Congressional elections.” Since Biden’s executive order and other challenged policies were not passed by Congress, Republicans argue that they cannot be implemented in the Keystone State.

Republicans claim that Biden’s executive order and Pennsylvania’s implementation programs that expand voting access violated the U.S. Constitution’s Electors and Elections Clauses because they improperly regulate the “time, place, and manner” of federal elections. Their original complaint also argued that Shapiro’s enactment of automatic voter registration “is an abusive and capricious exercise of executive power” that violates the Electors and Elections Clauses. 

Despite the lower court rejecting their case, Republicans are continuing their fight as they have been transfixed on advancing the radical ISL theory since Moore v. Harper. Now, Republicans are using this lawsuit challenging pro-voter policies to attempt to get the Court to accept the fringe theory. 

Read the petition here.

Learn more about the case here.