Republican Legislators Revive Independent State Legislature Theory in New Pennsylvania Lawsuit

WASHINGTON, D.C. — In a new lawsuit challenging an executive order by President Joe Biden and Gov. Josh Shapiro’s enactment of automatic voter registration, Republican legislators employ the radical independent state legislature theory to challenge increased voting access. 

Today, GOP legislators filed a new lawsuit invoking the independent state legislature theory (ISL) — the theory that only legislatures can regulate federal elections — to challenge the implementation of recent pro-voting developments in Pennsylvania. Republicans have been transfixed on advancing the radical theory that could upend democracy since the U.S. Supreme Court rejected the theory in the summer of 2023 when it issued its decision in Moore v. Harper

The lawsuit alleges that Biden’s Executive Order 14019, 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.

The lawsuit employs the radical ISL theory to argue that pro-voting changes to Pennsylvania’s elections — including implementation of Biden’s order, automatic voter registration and guidance from the Pennsylvania Department of State — are unconstitutional under the Elections Clause.  The plaintiffs argue that only Congress “can enact federal laws preempting state legal provisions regulating the times, places, and manner of Congressional elections.”  

The complaint argues that because Biden’s executive order and other challenged developments were not passed by Congress, they cannot apply to Pennsylvania. Republicans contend that Biden’s executive order and Shapiro  and the Pennsylvania Department of State’s implementation programs that expand voting access violates the U.S. Constitution’s Electors and Elections Clauses because implementation of the order improperly regulates the “time, place, and manner” of federal elections. The complaint also argues that Shapiro’s recent enactment of automatic voter registration “is an abusive and capricious exercise of executive power” and violates the Electors and Elections Clauses. 

The plaintiffs request that the court declare Biden’s executive order unconstitutional, block Biden from “any actions funding, supporting, or facilitating Executive Order 14019,” block a Pennsylvania 2018 directive that allows voters to register to vote if they provide invalid identification and block the implementation of automatic voter registration in Pennsylvania.

Since adopting automatic voter registration, Pennsylvania officials have reported an uptick in registrants. Unfortunately, Republicans are attempting to usurp this critical progress and the advancements made by Biden’s executive order at the expense of voters in this potentially harmful new lawsuit. 

Read the complaint here.

Learn more about the case here.