Congress Has the Power to Combat ISL, but Does It Have the Will?

By Mac Brower

The U.S. Capitol Building with the text of the Constitution superimposed on the sky behind it.

The U.S. Supreme Court, through the upcoming case Moore v. Harper, will review the radical independent state legislature (ISL) theory that could give state legislatures unchecked power to run congressional elections. If adopted by the Court, the consequences for American democracy could be dire.

In the face of such a threat, you may be wondering what can be done to fight back if the Court gives state legislatures the greenlight to run amok. Our system of government is supposed to be one of checks and balances — so who can provide a check against the power of state legislatures? The answer to that question is Congress. Thanks to powers granted to it by the Constitution, Congress is perfectly positioned to remedy the worst effects of the ISL theory.

The Elections Clause gives Congress broad powers to set the rules for federal elections.

The ISL theory is based on the Elections Clause of Article I of the U.S. Constitution, which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Proponents of the theory point to the use of the word “Legislature” to support their contention that state legislatures have special authority to set election rules free of checks from other parts of the state government or even the state constitution.

But the Elections Clause doesn’t end there. It goes on to state that “the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” So even if ISL theorists are right that the clause gives state legislatures special power to set federal election rules, the Constitution also gives Congress the ability to modify or preempt those rules at any time. So, if the Supreme Court endorses the ISL theory and allows state legislatures to set election rules free from other state governmental constraints, Congress can take action under the Elections Clause to protect American democracy by passing its own rules for elections.

Congress has used its powers under the Elections Clause throughout history.

Congress’s broad power to regulate elections isn’t just a theoretical power — it’s an authority that has been used time and time again. Among other things, Congress has used the Elections Clause to:

Furthermore, the Supreme Court has repeatedly confirmed that Congress has broad powers under the Elections Clause. In Ex parte Siebold, a case arising over some provisions of the Enforcement Acts, the Court declared that “Congress has plenary and paramount jurisdiction over the whole subject” of congressional elections. More recently, in 2013, the Court affirmed in Arizona v. Inter Tribal Council of Arizona, Inc. that the “power of Congress over the ‘Times, Places and Manner’ of congressional elections ‘is paramount, and may be exercised at any time, and to any extent which it deems expedient.’”

Congress has many options to protect democracy.

Given the broad power granted by the Elections Clause, Congress has many options to pursue in order to combat the negative consequences of the ISL theory. To start, federal lawmakers could set uniform election standards that all states must follow in federal elections. Right now, states have broad leeway in how they conduct their congressional elections — that’s why some states don’t allow mail-in voting or early-voting. But if Congress were to adopt minimum standards, the Elections Clause would require every state to follow them, at least for congressional elections. This is exactly what Democrats tried to accomplish in their push to pass the Freedom to Vote: John R. Lewis Act in January. That bill, for instance, would have required every state to offer at least 15 days of early voting and same-day registration at all polling locations. By enacting uniform standards, Congress can ensure that every American has an equal opportunity to vote in federal elections no matter what an unfettered state legislature decides to do.

Congress could also use its powers under the Elections Clause to combat partisan gerrymandering. One possibility is mandating that states use independent redistricting commissions to redraw congressional districts — as was proposed in the For the People Act — or simply ban partisan gerrymandering and mandate that nonpartisan criteria be used to redraw districts, as the Freedom to Vote: John R. Lewis Act would have done. Congress could even pursue more fundamental reforms, liking shifting to a system of proportional representation that would effectively render gerrymandering impossible.

But if Congress doesn’t want to enact more sweeping reforms, there are simpler ways lawmakers could counteract the ISL theory. One possibility is simply passing a law that requires state legislatures to follow the constraints set by their state constitutions when drawing new congressional districts and setting federal election rules. Under such a law, any action a state legislature takes over congressional elections that doesn’t comply with their state constitution would be invalid as a matter of federal law — and when federal law conflicts with state law, federal law wins out.

Congress has the power to combat the ISL theory — but does it have the will?

The ISL theory poses a threat to American democracy. But the same Constitution that has fueled that theory’s rise also gives Congress the tools to fight back against attempts to undermine democracy.
Unfortunately, it’s not clear Congress will take action to combat the theory. None of the more sweeping reforms Congress could pursue are likely to earn enough Republican support to overcome the filibuster — an arcane Senate rule requiring 60, rather than 51, votes to pass a bill — and Sens. Joe Manchin (D-W.Va.) and Kysten Sinema (D-Ariz.) both remain opposed to modifying the filibuster to pass comprehensive voting rights legislation. It’s possible a narrower proposal such as requiring election laws to comply with state constitutions could earn Republican votes, but with the midterms fast approaching, time may be running out to neutralize the ISL theory before the fringe theory has a chance to wreak havoc on American elections.