Should illegal aliens vote in American elections? Of course not. They’re not allowed to outside of the rare local election in the most scofflaw of blue municipalities, and they’re specifically forbidden from doing so in federal elections. Every few years one of them gets prosecuted for it, though, and there is considerable concern among Republicans that significant numbers of illegal aliens are, in fact, voting in our elections.
That’s where the Safeguard American Voter Eligibility (SAVE) Act is supposed to come in. According to its proponents, the SAVE Act will end the scourge of illegal aliens voting by requiring strong voter ID nationwide to keep American elections for Americans. While this is an understandable and admirable goal, the way the bill goes about achieving it has a number of problems. To begin with, it federalizes elections in a way that Republicans have long opposed. Furthermore, the provisions it mandates to weed out illegal aliens from voting could very well impede Republican electoral efforts. Lastly the SAVE Act is being used as a camel’s nose under the tent of the filibuster — much like HR 1 was by Chuck Schumer four years ago. While electoral integrity is critically important, it’s not at all clear that the SAVE Act is the way to ensure it.
The SAVE Act establishes new nationwide rules under the National Voter Registration Act, or the NVRA, that prohibit states from registering voters who lack proof of citizenship. It specifies which methods of establishing citizenship work, such as a REAL ID driver’s license, a passport, a naturalization certificate, or a birth certificate. It also provides for attestation if someone is unable to prove citizenship by documentation. In principle there is nothing wrong with this, and some states have tried to set up similar systems on their own, only to be impeded by courts that claim that the NVRA’s federal registration form preempts their efforts to make registration more stringent. Indeed Justice Scalia himself said that the NVRA prevented an Arizona proof-of-citizenship requirement in Arizona v. Arizona Inter Tribal Council.
Proponents of the SAVE Act, then, say that this is simply a federal solution to a federal problem created by the NVRA. But this misapprehends the history of the NVRA and its constitutional dynamics. The NVRA, popularly known as “motor-voter” and derided by Mitch McConnell as “auto-fraudo,” was a federal intrusion into state election management. While it has some ostensibly good provisions, like required voter roll maintenance, it’s largely an anvil on which civil-rights groups hammer conservative jurisdictions to advance liberal electoral lawfare. This is why, when the NVRA passed in 1993, it was supported only by liberal Republicans like Bob Packwood, Mark Hatfield, Jim Jeffords, and Arlen Specter. Not only was it opposed by the two sitting Republicans who were in the Senate at the time (Mitch McConnell and Chuck Grassley) but it was also opposed by Susan Collins’s mentor, Wiliam Cohen, and Lisa Murkowski’s father, Frank. It’s been a bad law from the outset, and its repeal is long overdue.
Instead the SAVE Act uses the NVRA’s federalized election regime ostensibly to do good. “Why not use this ring?” its proponents seem to ask. The fact is that federalized election rules have long been a goal of Democrats. With certain limited exceptions — like the supposedly preemptive federal registration form in the NVRA — states are left to their own devices in running elections. Indeed, as Justice Alito said in his persuasive Arizona Inter Tribal Council dissent, “Under the Constitution, the States, not Congress, have the authority to establish the qualifications of voters in elections for Members of Congress. See Art. I, §2, cl. 1 (House); Amdt. 17 (Senate). The States also have the default authority to regulate federal voter registration. See Art. I, §4, cl. 1.”
Recent efforts by Democrats to change this constitutional presumption through sweeping elections legislation have failed. Republicans have almost universally opposed these efforts either through opposition (such as voting against the NVRA or HR 1) or through benign coopting (such as the toothless Help America Vote Act). If Republicans get in the game of federal election regulation, it will be an endless back-and-forth for preferred, national election regimes between the two parties.
But if the Democrats are going to federalize elections anyway, why don’t Republicans just do it first? It’s an interesting argument. Perhaps a first-mover imperative could and should be enough to shake someone of his principled opposition to federalized election rules. But for that to be the case, the Republican first strike would need to succeed politically and it’s entirely unclear that the SAVE Act would actually redound to the benefit of Republicans.
In the plus column, the SAVE Act would prevent illegal aliens from voting, and Republicans assume illegal aliens trend Democratic. But the evidence of illegal aliens voting in large numbers just isn’t there. Iowa, for example, found that 35 illegal aliens voted in 2024. That’s not enough to fill one of Chuck Grassley’s beloved Dairy Queens. The Heritage Foundation’s election fraud tracker also includes comparatively few instances of illegal voting — and many of those entail felon voting, not alien voting. If this were a widespread problem, surely the Trump Department of Justice would be investigating and prosecuting it aggressively — with the willing assistance of 25 or so state AGs. They’re not — and it’s not for a lack of motivation — which implies strongly that this concern is theoretical.
On the other hand, it’s not at all clear that making voter registration more stringent currently favors Republicans. Decades ago, when the Republican base was suburban, upper-middle-class, high-propensity voters, making voter registration more time and resource intensive made sense: Republican voters would comply happily because they made it a point to vote. Your stereotypical Republican of old was also just the sort of person whose documentation would always be in order. In recent years, though, these high-propensity voters have flipped their party allegiance. Republicans are accordingly more and more reliant on a multiethnic coalition of low-propensity voters in order to build majorities. These voters will turn out in droves to vote for Donald Trump but frustratingly seem to stay home during off-year or special elections. If these voters — whom Republicans need — are generally unwilling to go to the polls, why should we think that making them do the work of confirming their citizenship will help them do so? What if they’re in states that don’t mandate REAL ID? What if they don’t have passports? (Who has passports? People with strong business, leisure, and familial connections overseas. Do we think they’re eager to make America great again?) Are they going to take the time and effort to attest to their citizenship? It seems unlikely and, at minimum, the SAVE Act’s proponents should have rigorous data showing it not to be the case.
Insofar as any of this proves a hassle for Democrats’ low-propensity voters, their countless nonprofits will spring into action to encourage and help them comply with the new registration rules. Republicans have no such infrastructure.
When Democrats pursue voting legislation, it is scientifically designed by clever lawyers like Marc Elias and Bob Bauer to increase their electoral advantage. The SAVE Act, on the other hand, may actually harm Republicans from a practical perspective in order to achieve worthy but theoretical goals. In other words, Democratic takeovers are designed to move majorities, while a Republican takeover here — even viewed most favorably to its proponents — may affect a handful of close elections. Even to a cynical Machiavellian, this is not an effective first strike.
There’s an unfortunate further irony in the demands that the filibuster be abolished to pass the SAVE Act. Almost exactly four years ago, Chuck Schumer was making the same argument about HR 1. Rather than putting forward a positive electoral agenda going into the midterms, he browbeat his members into walking the plank on the filibuster in order to try to rig the electoral game — doing real damage to the Senate in the process. Of course he didn’t phrase it that way: State-level Republican election-integrity reforms were so bad they made Jim Crow look like “Jim Eagle,” and HR 1 was necessary for the elections to be fair.
Republicans are on the verge of making the exact same mistake. Rather than focusing on an agenda that voters care about — the economy, cost of living, jobs, crime — Republicans are being told to evade the filibuster to, presumably but perhaps incorrectly, increase their electoral chances. Or, as it’s usually framed, to stop the illegal aliens from making our elections unfair. A good rule of thumb is not to follow Chuck Schumer’s legislative example.
Illegal aliens shouldn’t vote in federal elections because it’s against the law. Luckily there isn’t a lot of evidence that they do. If Congress or the president can find ways to remove federal barriers to states enforcing their own citizenship rules or cleaning up their voter rolls, that would be a welcome development. Would that they could repeal the NVRA! But responding to the hypothetical and generalized problem of illegal aliens voting by federalizing elections, erecting possible barriers to participation for low-propensity Republican voters, and harming the Senate as an institution seems like a very bad idea, however popular it may be online.