The Supreme Court decided Monday it won’t take up a case to restore a lawsuit by Pennsylvania Republicans that challenged executive actions expanding voting access on the basis that only state legislatures can regulate federal elections.
Twenty-seven state legislators filed the lawsuit to challenge a 2021 executive order by President Biden increasing access to voting through several measures and an edict by Pennsylvania Gov. Josh Shapiro (D) to enact automatic voter registration statewide.
However, after a district court threw out the case, the state legislators asked the justices to bypass a federal appeals court and determine ahead of the 2024 presidential election whether they have standing to bring the challenge. The justices on Monday declined to do so.
The Republican legislators are hinging their request on the so-called “independent state legislatures theory,” which contends that authority for regulating federal elections is singularly vested in state legislatures.
Adherents to the theory point to the Constitution’s Election Clause — which states that state legislatures shall set the “times, places and manner” of holding elections for U.S. Senate and House members — as rationale.
The Pennsylvania state legislators also cite a second constitutional provision, the Electors Clause, which says states, in a manner directed by their legislatures, appoint electors to certify federal elections.
But the Supreme Court already declined to endorse the theory in 2023, when the justices ruled 6-3 against a bid to give state legislatures sweeping authority in drawing congressional maps and regulating federal elections.
“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John Roberts wrote in the majority opinion in Moore v. Harper.
The Pennsylvania legislators argued that the high court still needed to determine “individual state legislator standing,” noting that 27 individual legislators banded together to “guard their duty to determine the manner of federal elections.”