Republicans in Congress, supported vocally by the Trump administration, are pushing for passage of the Safeguard American Voter Eligibility Act, or SAVE Act. It now appears to have majority support in the Senate after passing the House. The SAVE Act aims at a virtuous and popular end: ensuring that only U.S. citizens vote in federal elections. And many of the criticisms of the bill are overblown. But the SAVE Act continues a step in the wrong direction in federalizing elections. Worse, calls for Republicans to end the Senate filibuster in order to pass it would cause great mischief in exchange for very modest ends. Senate Republicans should not sell their patrimony for this mess of pottage.
It is already a federal crime as well as a deportable offense for noncitizens to vote in federal elections, or to represent themselves as citizens when registering to vote. (Some localities allow noncitizen voting, but only in local elections that are outside of federal purview.) People regularly get caught and prosecuted for doing so, but in small numbers — think dozens, not thousands. It is likely that more get away with it; it is less likely that the frequency of illegal voters who go undetected is really orders of magnitude higher. Requiring reliable proof of citizenship to register would likely make these cases rarer, as well as make them easier to prosecute, which is good. But the problem is far from the largest threat to our elections, let alone the country, and it is vanishingly unlikely to affect the outcome of national elections. It is worth addressing, but it is prudent not to swat a fly with a sledgehammer.
The Constitution wisely places primary responsibility for running elections in the states, rather than consolidating power in one pair of hands in Washington. Article I, Section 4 of the Constitution provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” It adds, however, that “Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Because this gives Congress a backstop power to supersede state laws, the courts have typically allowed federal intrusions — but this simply means that the primary check on nationalizing elections is the prudent stewardship of Congress rather than the legal reasoning of judges. The Senate, as the branch that represents the states, is supposed to be the sturdiest bulwark against federal overreach.
In 1993, Bill Clinton and the Democrats pushed through the National Voter Registration Act of 1993 (NVRA), the so-called “motor voter” law, which inserted the federal government into the details of how states could register voters. After the 2000 election, the bipartisan Help America Vote Act further enmeshed federal oversight in election law, albeit with some positive policies and fixes to problems created by NVRA. Rather than requiring proof of citizenship to register voters when they get driver’s licenses or other government benefits or permits, NVRA compels states to accept voter registration on proof of residency, which can be shown simply by a utility bill. This is plainly inadequate to weed out illegal aliens.
The Supreme Court ruled in Arizona v. Inter Tribal Council of Arizona (2013) that states could not require proof of citizenship because this would conflict with the federal requirements of NVRA. The case divided Justice Antonin Scalia (who wrote the opinion) and Chief Justice John Roberts (who joined it) from Justices Clarence Thomas and Samuel Alito, who dissented. Regardless of which side was right, this is a problem Congress could fix by clarifying that states can impose such requirements without federal interference.
The SAVE Act goes further than needed to accomplish that, largely because, reasonably, Republicans do not trust blue states to check for citizenship. This bleeds into its instructions for proving citizenship. The chief vehicle for doing so is to ask for a driver’s license or other identification card that complies with the REAL ID Act, which Congress passed in 2005 to identify citizens for air travel. There has been much hue and cry about the detailed alternative methods provided in the statute for proving citizenship, such as a birth certificate, naturalization papers, or a current passport. Married women, for example, may have changed their names since birth. But these are alternative methods. Anyone with a REAL ID can avoid them. Unfortunately, there are still five blue states (Michigan, Minnesota, New York, Vermont, and Washington) that do not require REAL ID. Bringing them into line could address the availability of REAL ID.
Even if we had no doubts about the wisdom of the SAVE Act, however, we would not follow Joe Biden’s foolish example of using election law as a wedge to destroy the legislative filibuster. The filibuster holds back a great deal of permanent mischief done by fleeting Democratic majorities, and the trend in the Senate away from split-ticket voting suggests that future Democratic majorities in that body are likely to be slim and temporary; Republicans should not empower them, and they certainly should not do so for benefits as small as those likely to be obtained by the SAVE Act.