The SAVE America Act: Mission, Constitutionality, & Potential Impact

Episode Notes

Transcript

John J. Martin:

All this law is doing is making it harder for us to boost turnout in those communities, right? We’re not making it any easier for folks who already find it difficult to vote or already find that they don’t have the time to go through all these requirements to vote. We’re not making it any easier.

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J. Craig Williams:

Welcome to Lawyer to Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from sunny Southern California. The Safeguard American Voter Eligibility Act, better known as the Save America Act, is a 2026 bill designed to tighten federal election integrity by requiring proof of US citizenship, including a passport or a birth certificate in order to register to vote. Also, you may have to provide photo proof when voting in federal elections. It’s been recently passed by the house. It’s created quite a stir igniting debates in the Senate with bipartisan opposition to registering and voting through documentation requirements. So if it’s passed, will the Save America Act change elections going forward? And how will this impact who votes in future elections? Today on Lawyer to Lawyer, we’ll take a look at the Save America Act and voter ID requirements. We will discuss the origin, constitutionality, and potential impact of the people of the United States. And without further ado, we’re joined by John J. Martin, an assistant professor of law at Quinnipiac School of Law. John teaches civil procedure with a focus on election law, campaign finance regulation and election administration. Welcome to the show, John.

John J. Martin:

Thank you for having me.

J. Craig Williams:

Well give us a little bit of an overview of the SAVE Act. I mean, what’s going on with this thing?

John J. Martin:

So now it’s called the Save America Act. Let’s start with there. Congress has been trying to pass this the past three years, and what the Save America Act is attempting to do is amending what was called the National Voter Registration Act of 1993. The National Voter Registration Act of 1993 was passed in part to make it easier to vote. It’s what requires state DMVs to allow anyone applying for a driver’s license to also register to vote. In the DMV, it has a litany of other requirements, but was generally passed to make it easier to vote. It requires a federal form to be adopted by every state in that every state is registering people to vote in federal elections. They have to use the forum that is imposed by the National Voter Registration Act. And on that forum currently all it does is ask whether the applicant is a US citizen.

They’re not required to present proof of US citizenship. Instead, they’re required to attest to being a US citizen. So where the Save America Act comes in is it’s trying to impose, well, there’s a lot of text in it. It’s HR 7 2 9 6, but I’ll try to be as brief as possible. The first major change is the Save America Act would require individuals to present documentary proof of US citizenship to register the vote in federal elections. What does documentary proof mean? Well, we’re given a list of potential documents that you could provide to election officials when you’re registering. One would be a real ID that shows proof of US citizenship. Though I should note that very few states currently show proof of US citizenship on Real id. Another options, a US passport. That’s probably the option that many individuals will have to gravitate towards. There’s a few other options like military ID showing that you were born in the United States, another valid government issued photo ID that shows that you were born in the United States or a government issued photo ID that’s presented alongside some other document showing that you were born in the United States such as a birth certificate or a document showing that you’re a naturalized citizen.

So at bottom, you would have to show some proof when you’re registering to vote that you’re a US citizen. Now, that’s what the SAFE Act originally all it was up until we now have this latest rendition, the Save America Act, and now we have this new provision that says to vote in federal elections. You also have to present eligible photo identification document at the polls what an eligible photo identification document is. It’s essentially similar to this list of proof of US citizenship that I provided. You’d have to show a government issued ID that shows or proves that, that you are in fact a US citizen. And if you don’t have an ID that shows that you are a US citizen, you can still try to present another form of identification and then an election official will have to look at it and look at other alternative methods of you proving that you’re a citizen and determine whether or not you’re allowed to vote or not.

Now, I could keep going. There’s a few other provisions. I guess the one last thing I’ll say, and then we could get into some of the other provisions is that states can avoid this photo ID law at the polls, this requirement that their citizens have to show photo ID at the polls if they provide on a quarterly basis to the Department of Homeland Security, it’s list of registered voters. So if a state really doesn’t want their citizens to be subject to this requirement that they have to show documentary proof of US citizenship to vote, then they have to hand over their voter registration list to DHS on a quarterly basis. There’s a few other provisions. I don’t know how in the weeds you’d like me to get though, Craig.

J. Craig Williams:

No, that’s fine. It’s great. This really sounds like it does a lot to increase election security.

John J. Martin:

It’s debatable. So that would be what the supporters of the Save America Act would say is they’re trying to, they’re fighting to secure a few goals. One would be protecting election integrity by ensuring that only citizens can vote in our elections, right? At the very least in federal elections. Now, certainly this law would make it far more difficult for a non-citizen to vote in an election. I’ll give them that, right? It creates a huge barrier that you’d have to get across that I don’t see many noncitizens getting across. At the same time, there’s a question of, well, how big of a problem is this in the first place and is it worth imposing such a stringent requirement to fight something that might not be a big deal? Typically, in any given election, in each state, you might see a dozen or two dozen non-citizens actually voting.

So it’s something that happens, but it’s not extremely widespread, right? It’s like 0.0001% of those who are voting in an election. So there’s that consideration. Now, the second requirement that you have to present photo ID to vote, people will say, okay, well, even not thinking about non-citizens, this cuts down on election fraud, right? People voting even if they are citizens who aren’t supposed to be voting right, people who might be citizens of another state, people who are trying to vote more than once. But again, we’ve seen in the statistics that voter fraud, while it does occur, it’s pretty minuscule, right? So in Pennsylvania, for instance, over the past 30 years, there have been about a hundred million votes registered over the past 30 years of elections, and there’s only 39 documented instances of voter fraud in Pennsylvania, 39 out of a hundred million. So again, it’s something that happens, but the question is, do we need the Save America Act to cut down on those last few small instances, states themselves have already done a pretty good job managing to fight back against voter fraud and non-citizen voting.

They have what’s called the Electronic Registration Information Center, or Eric, which allows states to share information amongst each other’s election officials to ensure that nobody is, for instance, registered to vote in two states, just by example, I moved to Connecticut recently and I just got a letter in the mail from Virginia saying, Hey, we just received information that you moved to Connecticut. Do you actually still live in Virginia? Please respond within this amount of time, and if you don’t, we’re going to remove you from our voter rules. Right? So states already have systems to take care of this problem. The last potential benefit that we could say could come out of the Save America Act is that it builds trust in our elections among Americans. So even not thinking about the actual instances of fraud instances of non-partisan voting, it makes Americans trust our electoral system more, to which I say maybe, right? Certainly a lot of Americans would say they don’t want citizens voting in their elections. They don’t want instances of voter fraud, right? I don’t think that’s too controversial, but this has become a very partisan bill, right? It’s very much a Republican supported bill. It’s being spearheaded by Donald Trump, and the question is, if we impose such a stringent requirement, such stringent requirements to register the vote and then to actually vote, and it’s being spearheaded by one party, is that actually building a larger universal trust in our electoral system? Probably not.

J. Craig Williams:

Is the save act going to suppress voting?

John J. Martin:

So it will certainly lead to less voting. I think just mathematically when you make it more difficult to register the vote or more difficult to vote, even if you might look at this bill and decide, you know what? It’s not actually that big a deal from my perspective. I have a passport. I’ll be able to present this when I register. I’ll be able to present photo ID when I go to the polls, but mathematically, some people will not vote because of this law. Now, the question is how much, and I don’t think we’re able to fully predict how much I could say that tens of millions of Americans lack a driver’s license, let alone a passport. Only a little over half of American adults have a passport, and among those adults with a passport, certain segments of the population are more likely to have it.

So folks that live in urban areas or suburban areas outside of urban areas, they’re more likely to have a passport. We might even say high income individuals, those who are traveling outside of the country, I’m more likely to have a passport and we’ll have an easier time meeting the requirements of the Save America Act. But then you’re going to have individuals who don’t have the funds perhaps to get documentation, or perhaps they’re just not as aware of the changes in the laws, and they’re going to arrive at the polls and not realize suddenly they have to provide photo id or they’re going to arrive at the DMV to register the vote, and they’re going to realize that they don’t have the proper documents. Now, proponents of the Save America Act will say, well, there’s built-in provisions where if you try to register the vote and you don’t have the right documents, you still have an opportunity to register as long as you attest to being a US citizen, and then you provide proof that you are actually in fact a citizen later on.

And also, the ACT doesn’t do anything to get rid of the provisional ballot option, where if you don’t have what you need to vote on voting day, you could still cast a provisional ballot and submit later on proof that you are in fact eligible to vote, and then your vote will be counted. But still, yes, it’s good that we have these measures, but somebody, there will be people who will not vote because of this act. Now, one final thing I’ll say is, okay, what does the data actually say though? Because we have voter ID laws on the state level in many states, they’re not as stringent in many ways as the Safe America Act, but we have voter ID requirements to vote in many states. A few states even require you to show that you are a US citizen to register in their elections. But at the same time, when we study these laws, then the question is question of have these laws actually impacted whether people are able to vote in the elections in those respective states?

The literature is a little unclear. Some studies show that voter ID laws do suppress voting, turnout, it leads to lower voter turnout. Some studies show that there’s not actually a big effect, but at the same time, let’s consider the fact that those two might lack the ID that you need to vote under something like the Save America Act. Those who live in low income communities, they’re already presently not voting. There’s lower turnout among low income communities to begin with. And so yes, maybe if we oppose a photo ID law, we might not see that voter turnout has changed that much in low income communities, but they’re not voting that much to begin with, and all this law is doing is making it harder for us to boost turnout in those communities, right? We’re not making it any easier for folks who already find it difficult to vote or already find that they don’t have the time to go through all these requirements to vote. We’re not making it any easier. So that’s a long way of saying it’s complicated, I suppose.

J. Craig Williams:

Right. Certainly at this time for Let’s take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer to Lawyer. I’m joined by John J. Martin, assistant professor of law at Quinnipiac University School of Law in Connecticut. What does the Constitution say about a citizenship requirement, and do you think that the Save America Act will be constitutional because how does the federal government get involved with elections in the state?

John J. Martin:

Oh my gosh, yeah. So I have a lot of thoughts on this. So let’s take this step by step. What does the Constitution about citizenship and voting, or does the Constitution impose a citizenship requirement to vote? The short answer is no. There is no citizenship requirement to vote imposed by the Constitution. So what the Constitution says about voting, first off, the original Constitution said very little about voting, right? There’s very little in our original Constitution about actual voter qualifications. The Constitution provides no universal grant of suffrage, but under our modern amended constitution, we might consider voting rights to be treated as a negative right under the Constitution. In that the Constitution says, the government can’t discriminate against you and your ability to vote on the basis of race under the 15th Amendment sex under the 19th Amendment and age, so long as you’re 18 years or older under the 26th Amendment, and those amendments refer to the right to vote as the right of citizens of the United States.

But nothing in the Constitution actually states that you must be a US citizen to vote in the United States, let alone in federal elections. In fact, our country has a history of non-citizens voting in federal elections from the very founding of the country. Up until World War I, there were certain states that allowed this to happen, and the Constitution really leaves this decision on who could vote in elections up to the states. So this idea of you asked me, is the Save America Act constitutional? I would say, no, it’s not constitutional, and there’s two ways we can attack it. And one is this structural argument, this idea that the structure of the Constitution itself does not allow Congress to decide that only citizens can vote in federal elections. So Article one, section two, clause one, and the 17th Amendment of the US Constitution, both say that the electors at each state and electors means voters.

So I’ll just say the voters in each state to vote in congressional elections. So elections for their US House representatives and for the US Senators shall have the qualifications requisite for the electors of or voters of the most numerous branch of the state legislature. And generally, what this is basically saying is that if you are qualified to vote in your state’s legislative elections, or I should say the lower house of your state’s legislative elections, then you are by default qualified to vote in congressional elections. So here in Connecticut, I’m allowed to vote in my Connecticut General Assembly elections. I’m qualified to vote in those elections, and therefore I’m also qualified to vote for congressional elections in Connecticut. Right now when it comes to presidential elections, it’s even clear that this is in the state’s hands because the electors clause, article two, section one, clause two says that each state appoints their presidential electors in such a manner as the legislature thereof may direct.

So again, it’s the state legislature that gets to decide who gets to vote for our presidential electors in a presidential election. So there’s largely states that get to decide who gets to vote in federal elections, let alone state and local elections. States obviously get to decide who’s qualified to vote in their own elections, right on the state and local level. Now, people might be listening to this and thinking those who know a bit about what the Constitution says about elections, they might say, well, hold on Article one, section four, the elections Clause says, well, Congress gets to regulate the time, place and manner of holding congressional elections, right? This is called the Elections Clause. It allows Congress to regulate the time, place, and manner of holding congressional elections.

J. Craig Williams:

And that’s a real term of art, isn’t it? Time, place, and manner.

John J. Martin:

Yes, exactly. So the question is what does this mean and does this apply to voter qualifications, voter eligibility? Who gets to vote in congressional elections? Can Congress decide this and the court has landed on No. So it said this in a few different cases. Most recently in Arizona, the Intertribal Council, it’s a 2013 case. The court said plainly that nothing in the Constitution lends itself to the view that voting qualifications and federal elections are to be set by Congress. I mean, you can’t get any planer than that. Congress has no role in deciding who gets to vote in federal elections. Now, here we have a law that says you have to present proof that you are a US citizen to vote in federal elections. We also have a previous law from 1996, the illegal Immigration Reform and Immigrant Responsibility Act that makes it a crime for a non-citizen to vote in federal elections.

So we have these laws. So it’s not like the Save America Act is unprecedented in saying that you have to be a citizen to vote in federal elections. Now it’s making it so you have to affirmatively prove this to vote in federal elections. But either way, I’d say that all this is Congress isn’t allowed to make this decision, right? Congress can’t decide we have to be a US citizen to vote in federal elections because our Constitution is designed that the states decide this. Now, every state in our present day has limited voter qualifications in their elections to citizens. So it’s not like any state currently allows non-citizens vote. So that’s why the structural case, while interesting and I think is very clear cut, I don’t think we’ll ever make it to court because who would have standing to bring this claim, right? Because currently no state attempting to allow non-citizens to vote in state elections and then in turn in congressional elections, the alternative way to attack the Save America Act would be from a fundamental right to vote cause of action.

So the Supreme Court through decades and decades of development of jurisprudence in this area has provided that you could challenge election laws under an argument that they burden the fundamental right to vote. Now, how courts review these claims, these challenges is through something called the Anderson Ber Sliding Scale Test, which essentially says that if the burden on the right to vote is really high, we’re going to impose strict scrutiny, right? We’re going to require the government to show that there’s a compelling state interest in imposing this very burdensome election law. If the burden is lower, then we impose something less than strict scrutiny. Sometimes it’s intermediate scrutiny. If it’s a somewhat burdensome election law, sometimes it’s rational basis if it’s not burdensome at all. Now, voters who are impacted by the Save America Act could try to bring a right to vote challenge. They could say that this is a very burdensome law, and therefore the government needs to show that they have a compelling state interest in imposing this law and that there’s not any, and that it’s the most narrowly tailored way of achieving its interest.

The Supreme Court has reviewed, at the very least photo ID laws in the past, voter ID laws, laws that require you to present a photo ID at the polls to vote in a case called Crawford v Marion County Election Board in 2008, six justices held that Indiana’s voter ID law did not violate the fundamental right to vote. They said that the burden wasn’t truly that high, and so the state had an easier time justifying that law, and so I would wager that the Supreme Court, if they were to analyze the Save America Act through a right to vote, Anderson Burik sliding Scale test, they would probably with the six three conservative liberal breakdown, lean on the side of saying that it doesn’t violate the right to vote. Now, the big problem that the court has had with these challenges is a lot of times they’re facial challenges.

Perhaps you could bring an as applied challenge to somebody who’s really particularly impacted by this law, and you could try to successfully challenge the law through that way as applied right to Vote challenge. Certainly, there’s going to be more individuals who’ll be able to prove standing in such a case because there’s going to be a lot of voters impacted by this law. So it’s sort of this tricky thing where voters could potentially bring this right to vote cause of action. It probably won’t succeed, maybe it will. I think the stronger constitutional case is that to repeat myself, Congress just does not have the actual authority under the Constitution to impose a citizenship requirement to vote in federal elections. But again, I don’t know who would have standing to bring that challenge into today’s age.

J. Craig Williams:

Certainly an odd kind of a conundrum. Let’s take a quick break to hear a word from our sponsors. We will be right back and welcome back to Lawyer to Lawyer. I’m back with John J. Martin, assistant professor of Law at Quinnipiac University School of Law. What happens to married women who’ve changed their names? What happens to people that move from state to state? And I have one personal question to ask. I inherited my mom’s house in Massachusetts, which means I own property in Massachusetts and I have a house out in California. So does that mean that I can vote in Massachusetts state elections not federal?

John J. Martin:

Well, I guess I’ll break down the answers from your personal question to then questions on how this might hurt certain segments of the population more than others. To answer your last question, first to vote in Massachusetts elections, you’d have to look at the qualifications. Each state gets to determine its own qualifications. I’d imagine Massachusetts requires you to be an actual domicile of the state to vote in its elections. So you live in California?

J. Craig Williams:

Well, I do stay there in the summertime,

John J. Martin:

Yes, but what I would bet without having dug into Massachusetts own qualification laws is that you’d have to prove that your primary residence is in Massachusetts, right? That you are a domicile, right? You are only as a natural person. You have one domicile, right? I’m sorry. We’re learning personal jurisdiction in my civil procedure class. So this has been fresh in my mind. Theoretically, Massachusetts could allow people who just live there part-time to vote in their elections. Most states, from what I’ve seen, require you to have your primary residence in the state to vote there, but certainly Massachusetts could technically allow somebody in your position to vote if they want to. I would just without having looked into the laws, but I would bet that you would not be able to. So when it comes to married woman, this has been a big one brought up.

Look, if you don’t have a passport and if you don’t have a real ID that shows that you are a US citizen or a driver’s license that shows you are a US citizen, which very few do, right? Very few driver’s licenses are real IDs are going to show this. But if you don’t have those, then your next best bet for registering to vote under the Safe America Act is to provide a driver’s license, but then pair it with a birth certificate, something that proves that you are in fact a US citizen and for married women who changed their last names. The problem is that their driver’s license might reflect a different last name than what’s on their birth certificate, in which case a conundrum is presented, right? This might become a little dicey from an election official’s point of view.

J. Craig Williams:

Well, other than you would have a marriage certificate presumably that has the change of name, right?

John J. Martin:

Certainly. So you could present that, right? The law seems a little ambiguous from what I’ve read as to if an election official could also take that into consideration because it doesn’t mention anything about marriage certificates insofar as what you could present to the official who is registering you to vote. Something else to add about what’s in the Save America Act is it potentially opens up election officials to criminal penalties if they register someone to vote, who in fact is not a US citizen. So election officials might be a little squeamish about registering someone to vote when the documentation might not fully a hundred percent line up, or the documentation might not align with what’s included in the Save America Act. I mean, these criminal penalties could lead to up to five years in prison. So it’s nothing to sneeze at. So election officials might just be a little more apprehensive.

There might just be some issues when you actually arrive at the DMV and try to register the vote if there is some disparities between the documentation that you’re providing. Certainly people who are moving, I mean, I think people who are moving are going to be the most affected because when you move, what do you have to do? You have to re-register the vote, right? I mean, I’ve moved a lot of times of the past few years, and each time I have to go to the DMV and get my driver’s license and then I have to register the vote. If you don’t have the right documentation with you, then you’re not going to be able to register. Now, currently, under our present laws, all you have to do is attest to you being a US citizen. Again, the Save America Act will require you to bring documentation that shows that you are a US citizen.

If you don’t have that, then you’re either not going to be able to register or you’re going to have to attest that you’re a US citizen under the penalty of perjury, and then provide some documentation later on an official to prove that you are a citizen. So it’s going to make it more of a headache to register the vote when you’re a citizen. One last thing, and this isn’t fully related to this question, but one thing I wanted to make clear is that the Save America Act applies to federal elections because Congress is interpreting its elections Clause power to mean that it can use the Save America Act to regulate federal elections, but the Save America Act technically doesn’t apply to state and local elections. Now, the problem with this is that election administration is already very complicated. Very few states are going to bifurcate their election administration to have a federal election administration system and then a state and local election administration system. So when Congress regulates federal elections oftentimes trickles down and affects how states have to also regulate their own state and local elections. So the State of America Act has the potential to impact not just people’s ability to vote in their federal elections, but also their ability to vote in their state and local elections depending on whether the state that they live in decides to just apply the Save America Act to all elections.

J. Craig Williams:

Well, John, we just about reached the end of our programs. It’s time to wrap up and get your final thoughts about the Save America Act and voting, and I’m going to assume that say you, since you believe that Congress can’t really regulate state elections, that any kind of executive order from President Trump would also be unconstitutional.

John J. Martin:

Certainly. I do not think any executive order by Trump trying to impose the provisions of the Save America Act would be constitutional. I mean, it’s pretty clear that the President doesn’t get to unilaterally decide how elections are ran. Nothing in our constitutional structure allows for that to happen. I am fairly confident that the Save America Act will not be passed into law this term. It’s passed through the House. It’s currently sitting in the Senate, and I believe John Thune is intending to put it up to a vote, but unless they somehow get around the filibuster, they don’t have 60 votes to pass it. Right? So I do not foresee it becoming law. At the same time, I also do not foresee this going away. I think that we will see future attempts to impose and pass such an act in the future. At the end of the day, as I’ve said, I think it’s unconstitutional.

I think it goes against our founders’ framework that they’ve designed where states get to decide who votes in elections. It flies in the face of principles of federalism. I just hope that it never has to make its way to court because I hope it never gets imposed. If you want to have US citizenship requirements, if you want to have a requirement that you have to show documentary proof of US citizenship to vote in elections, talk to your state representatives, talk to your state level lawmakers, and try to get those requirements passed through the state because that’s the appropriate avenue.

J. Craig Williams:

Great. Well, John, it’s been an absolute pleasure to have you on the show. Thank you very much.

John J. Martin:

Yep, absolutely. Thank you for having me.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topics. This is a dicey little situation. You may remember that when we first formed the country, only property owners could vote, and that was the major assumption. People that paid into the government were the ones that were going to be able to control what the government did. It’s now expanded to include all United States citizens, and in some, it used to include non-citizens. The question is really whether, what basis do you want to have your government run? Do you want it run by people who live in the country and are affected by it? Do you want it run by people who own property? Do you want it run by people who only, people who pay taxes or only people who can afford to buy a passport, get a driver’s license? There are all types of exclusions and all types of effects.

It’s a difficult question to answer, and there are positions on all sides of it right now. Citizens can vote. So get out there, register your vote, and let’s see what happens in the midterms. Thanks very much for listening today. Remember, I’ve got three books out titled How To Get Sued the Sled, and My newest book. How Would You Decide 10 Famous Trials That Changed History? You can Find All three on Amazon. In addition, our new podcast, miniseries in Dispute, 10 famous trials that changed History is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe well, if you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think lawyer to lawyer.

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