Republican Election Officials Support Radical Theory to Upend American Elections

WASHINGTON, D.C. In a new brief, nine Republican secretaries of state are asking the U.S. Supreme Court to take a case out of Pennsylvania pushing the independent state legislature theory, a radical legal theory that could upend American elections.

The “friend of the court” brief submitted Tuesday by Republican secretaries of state — from Arkansas, Indiana, Louisiana, Mississippi, Montana, New Hampshire, Tennessee, Wyoming and West Virginia— argues that President Joe Biden (D)’s enactment of a pro-voting executive order violates the U.S. Constitution. Specifically, Republican secretaries of state argue that the “policies of Executive Order 14019 usurp the states’ and Congress’s legislative authority” pushing the radical ISL theory. 

The Republican secretaries of state are in the company of 11 Republican members of the U.S. House of Representatives and a far-right think-tank, the Claremont Institute, which also submitted “friend of the court” briefs in support of the radical ISL theory on Tuesday. The Biden administration has waived its right to respond to the petition in the Supreme Court.

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  — governors, the courts, the people or even state constitutions themselves — would not be able to set the rules governing elections. Last June, the Supreme Court rejected this theory in a 6-3 decision in Moore v. Harper

Since the Supreme Court’s decision in Moore v. Harper, Republicans have been attempting to revive the theory through new lawsuits. 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.

Previously, the trial court dismissed the case for lack of standing, but in late April, the Republican plaintiffs asked the 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,” the Republican legislators who brought the case contend that Biden’s executive order and other challenged policies cannot be implemented in Pennsylvania. 

Now, nine Republican secretaries of state are also asking the Supreme Court to take up this radical challenge. “The Elections Clause provides for states, not the President of the United States, to regulate state voter registration systems and designation of other agencies to provide voter registration services,” the brief argues, further pushing the radical idea that only state legislatures can regulate elections.  

Read the brief here.

Learn more about the case here.