SCOTUS will not hear the case that raises controversial theories about state power in federal elections

The U.S. Supreme Court declined to consider a lawsuit by 27 Pennsylvania Republican lawmakers seeking to revive the right-wing Independent State Legislature (ISL) theory, which holds that the U.S. Constitution gives exclusive power to state legislatures to regulate federal elections.

Despite the U.S. Supreme Court’s previous rejection of the Constitution’s fringe argument in its 2022 ruling Moore v. Harper Following the decision, Republican litigants across the country have repeatedly tried to revive the dubious legal theory.

The case at the heart of today’s order — which a federal district court judge dismissed in March — invoked the right-wing theory as the basis for challenging a series of state and federal executive actions to expand voter registration.

Keystone State lawmakers specifically questioned President Joe Biden’s 2021 executive order aimed at easing voter registration and promoting voting access across the country. The lawsuit also sought to override a number of Pennsylvania-specific voting policies, including Gov. Josh Shapiro’s (D) 2023 policy, which established automatic voter registration for residents receiving driver’s licenses and ID cards.

According to the lawmakers’ reasoning, Biden, Shapiro and other state and federal defendants “usurped the authority of the Pennsylvania legislature … by changing Pennsylvania’s election laws through executive orders” and “cancelling” the votes of individual legislators, a Violation of the elections and voters of the US Constitution constitutes clauses.

Without addressing the merits of ISL’s claims, a federal district judge dismissed the suit for lack of standing, writing that “plaintiffs as individual legislators lack standing because they have not alleged a specific injury not also suffered by them.” “every member of the Pennsylvania General Assembly.”

At the same time, the lawmakers appealed the case to the 3rd U.S. Circuit Court of Appeals and the U.S. Supreme Court, where they argued that individual legislators had standing to sue under the Elections and Voters Clauses. Lawmakers originally asked the Supreme Court to bypass the 3rd Circuit and expeditiously resolve the ongoing matter to ensure resolution of the case before the November 2024 election, but the court refused.

Although today’s order dismisses the state Republicans’ appeal to the Supreme Court, their appeal remains pending in the 3rd Circuit. Accordingly, lawmakers could take the case back to the nation’s highest court after the 3rd Circuit issues its decision.

Republican secretaries of state, Republican members of the U.S. House of Representatives and other right-wing organizations – including the Claremont Institute – all submitted letters urging the justices to take up the case.

Later this month, the court will have another opportunity to consider a certification motion based on the ISL theory. At an Oct. 18 conference, the justices will weigh whether to uphold an ISL-centric appeal from Montana’s Republican secretary of state that seeks to reinstate a series of voter suppression laws that the state Supreme Court struck down in March .

It takes four judges to agree to hear a case.

Meanwhile, two other federal lawsuits led by Republicans from Missouri and Texas also target Biden’s executive order and both rely in part on the ISL theory. Accordingly, the courts still have other options to assess the validity of the implementing regulation.

Read the order here.

Find out more about the case here.