Pennsylvania Biden Executive Order and State Policy Challenge  

Lawsuit filed on behalf of Republican Pennsylvania legislators invoking the discredited independent state legislature (ISL) theory to challenge a pro-voting executive order passed by President Joe Biden along with other Pennsylvania-specific voting policies. The lawsuit alleges 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.

Under the ISL theory, the plaintiffs argue that pro-voting changes to Pennsylvania’s elections — including the implementation of Biden’s order, automatic voter registration and guidance from the Pennsylvania Department of State — are unconstitutional under the Elections Clause of the U.S. Constitution.  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 asserts that because Biden’s executive order and other challenged developments were not passed by Congress, they cannot not apply to Pennsylvania. 

Specifically, the complaint alleges that Biden’s executive order and Gov. Josh Shapiro (D) and the Pennsylvania Department of State’s implementation of programs that expand voting access violate the U.S. Constitution’s Electors and Elections Clauses. According to the plaintiffs, only state legislators can regulate the “time, place, and manner” of federal elections, rendering the implementation of these programs a “usurpation of state legislative powers.” 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, prevent Biden from engaging in “any actions funding, supporting, or facilitating Executive Order 14019,” block a 2018 Pennsylvania directive that allows voters to register to vote if they provide invalid identification and stop the implementation of automatic voter registration in Pennsylvania.  On March 26, the court dismissed the case for lack of standing.

On April 23, the Republican plaintiffs asked the U.S. Supreme Court to take up their case while an appeal is still pending in the 3rd U.S. Circuit Court of Appeals.

STATUS: On Oct. 4, 2024, the Supreme Court declined to take this case. Litigation in the 3rd Circuit is ongoing, and oral argument will take place on Jan. 17, 2025.

Last updated: November 19, 2024 3:00 pm EST