The SAVE Act Is Part of Broader Effort to Limit Voting

Elections are the foundation of our democracy, and broad voting participation ensures that our government is truly representative of We, The People. Earlier this year, the House of Representatives passed the “Safeguard American Voter Eligibility Act,” or SAVE Act, legislation that would impose new obstacles for citizens who want to register to vote, and therefore limit voting and political participation as well. Significantly, the proposed law would have a disproportionate negative impact on women, elderly, young, Hispanic, low-income, active-duty military, and rural citizens.

The SAVE Act would amend the National Voter Registration Act of 1993 (NVRA), a federal law that has made it easier for Americans to register to vote and maintain their voter registration. The changes would require all applicants to provide documentary proof of citizenship when they apply to register to vote.

The Senate has taken no tangible steps to move the bill, which has been characterized as “dead on arrival.” But the proposal reflects a much broader, yearslong, multi-pronged effort to limit voting and voter registration as well as to sow doubt in elections, and those of us who are committed to democracy and expanding democratic participation must stay vigilant about such measures. Since the 2020 election, amid an epidemic of election denialism, state legislatures have been active in considering and passing restrictive voting laws, including limits on absentee and early voting, stringent ID requirements, and increased (or more aggressive) voter purges. At the federal level, one of President Trump’s first actions was to rescind President Biden’s Executive Order 14019, Promoting Access to Voting. He also issued his own Executive Order 14248, “Preserving and Protecting the Integrity of American Elections,” which, among other things, seeks to require voter registration applicants to provide documentation to prove citizenship — somewhat comparable to aspects of the SAVE Act. A court has blocked that provision from going into effect.

The SAVE Act’s requirement for documentary proof of citizenship will neither improve election administration nor make our elections more secure. Federal law already requires that only citizens may apply to register to vote. Under existing law, Americans in all states but New Hampshire, Wisconsin, Wyoming, and North Dakota have the right to register by mail using the national mail voter registration form. The initial text in the form asks: “Are you a citizen of the United States of America?” Shortly thereafter, it states in bold type, “If you checked ‘No’ . . ., do not complete form.” Moreover, at the end of the form, applicants must verify their citizenship under penalty of perjury. As stated in the form, the consequences for a noncitizen who attempts to register to vote are significant. If applicants are not truthful, they can be criminally prosecuted for a felony offense and subject to fines and deportation.

Unsurprisingly then, noncitizen voting in American elections is exceedingly rare. A study of the 2016 general election found that “election officials who oversaw the tabulation of 23.5 million votes … referred only an estimated 30 incidents of suspected noncitizen voting for further investigation or prosecution.” In other words, even suspected — not proven — noncitizen votes “accounted for just 0.0001 percent” of the votes cast. The libertarian Cato Institute also has concluded that “noncitizens don’t illegally vote in detectable numbers.”

Prior to the NVRA’s passage, voter registration laws varied greatly between states, and in many it was burdensome to get registered to vote. For example, in many states, a voter registration applicant could register to vote only by visiting an elections office in person. And in some of those states, the in-person registration was available in only one location per county with limited hours, or there may have been no location easily visited.

Congress passed the NVRA to facilitate voter registration and eliminate these types of barriers. The NVRA made it easier for millions of citizens to register to vote by requiring nearly all states to offer a minimum of three identified streamlined voter registration mechanisms: a voter registration application as part of driver’s license and state ID transactions (“motor-voter”); the use and acceptance of the national mail voter registration application (“mail voter registration”); and voter registration applications as part of applications, renewals, and changes of address processes at various state agencies (“public agency voter registration”).

In the 22 months after the NVRA’s initial implementation, 41,452,428 Americans used the NVRA’s processes to submit voter registration applications or transactions, leading to the highest voter registration ratethe country had seen in over 35 years. By making streamlined voter registration broadly available, the NVRA’s implementation has led to many millions of voter registration applications and has particularly led to increased voter registration among lower-income Americans.

The SAVE Act would turn this progress on its head. Notwithstanding existing safeguards and low incidence of noncitizen voting, the SAVE Act requires presentation of documentary proof of citizenship with every voter registration application — impacting every way a citizen might register to vote. Citizens relying on mail voter registration nevertheless would have to go in person to an election office to provide the needed documentation, negating decades of modernization of the process. The penalties for an election official making a mistake or failing to carry out the mandate are severe. If an election official registers an applicant to vote without documentary proof of citizenship, that official can be criminally charged, with penalties up to five years in prison, and is also subject to a private lawsuit — even if the individual registered to vote is a U.S. citizen.

If the Senate were to pass the SAVE Act, voter registration would become more challenging and cumbersome. When there are more steps in the voter registration process, people are less likely to register. A significant number of Americans — reported to be more than 9% of American citizens of voting age, or 21.3 million people — cannot easily access documents that prove their citizenship. For example, a young adult’s documents might still be in their parents’ home, at a distance away, or others might keep such documents in a safe deposit box. Only half of Americans have a passport, and securing one is time-consuming and costly. At least 3.8 million citizens do not have documentary proof of citizenship for a variety of reasons, including that documents have been lost, destroyed, or stolen.

Concerns relating to the SAVE Act are not hypothetical. Laws requiring documentary proof of citizenship to vote in state elections in Kansas and Arizona have prevented tens of thousands of eligible citizens from exercising their right to vote.

The extra steps required by the SAVE Act would have a disproportionate impact on women as well as elderly, young, Hispanic, low-income, active-duty military, and rural citizens. About 80% of women change their last name when they get married, and roughly 33% of married women would be unable to produce documents that would satisfy the provisions of the SAVE Act. A significant proportion of elderly voters (80 years and older) and younger voters (18 to 29 years) are unable to access or produce documents proving citizenship (in a 2020 survey, 14.1% and 24.3% of respondents respectively). In case studies in Texas and Georgia, Hispanic voters were less likely to have access to documentary proof of citizenship than white or Black voters, and low-income voters were less likely to have identity documents at all. Active-duty military personnel and their families would need to re-register in person every two to three years when they move. Rural voters, who regularly rely on remote voter registration methods like online voter registration or mail voter registration, would be forced to drive exceptionally long distances to provide their proof of citizenship at an election office, in some instances driving as many as 4.5 hours and 260 miles round-trip.

Beyond the disproportionate impact on women voters, 87% of local election officials are women. Local election officials, who have the responsibility to implement and execute the SAVE Act’s requirements, already suffer high levels of job stress, and job satisfaction has declined significantly over the last five years. In that time period, they have had to manage an increasing workload, threats and harassment (including verbal abuse, doxxing, and physical threats), and frequently changing election policy. Adding the threat of criminal punishment and personal liability to these ongoing challenges will only make these women’s jobs that much more difficult, ultimately risking higher turnover and less experienced election officials.

The SAVE Act is a solution in search of a problem. Our current voter registration laws have worked well for three decades. The incidence of noncitizen voting is so small that there is no reason to introduce additional hurdles into the registration process; it seems clear that the SAVE Act’s true aim is not to improve elections but, rather, to sow fear about the security of our current voter registration processes and create a reason to challenge election outcomes that the denialists don’t like. Voters and elected officials need to understand the SAVE Act and measures like it as what they truly are: tools for limiting voting and undermining elections.