Three Reasons the Save Act Is Unconstitutional

The SAVE Act won’t pass, and that’s a good thing.

Save Act Background

The Safeguard American Voter Eligibility (SAVE) Act is federal legislation that would amend the National Voter Registration Act (NVRA) to require individuals to provide documentary proof of U.S. citizenship—such as a passport, birth certificate, or certain REAL ID-compliant documents—when registering to vote in federal elections.

States would be prohibited from accepting registration applications without this proof, and the bill includes provisions for alternative processes, voter roll purges, and penalties for non-compliance.

The act requires the voter ID to be the same as their birth certificate.

This places an extraordinary burden on women who would need a birth certificate and a marriage certificate to register to vote. Multiple divorces and remarriage is particularly problematic.

The act would be unconstitutional for three reasons.

1. Congress Lacks Authority to Impose Voter Qualifications.

The U.S. Constitution delegates the power to set voter qualifications—such as age, residency, and citizenship—to the states, with limited federal overrides via amendments (e.g., the 15th, 19th, and 26th Amendments prohibiting discrimination based on race, sex, or age).

The SAVE Act’s proof-of-citizenship requirement effectively establishes a new national qualification for voting by mandating documentation that verifies citizenship status, which exceeds Congress’s role under the Elections Clause. This clause allows Congress to regulate procedural aspects like how elections are conducted, but not who is eligible to participate.

In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court struck down a similar state-level proof-of-citizenship requirement for federal elections, ruling it conflicted with the NVRA’s simpler attestation process.

By amending the NVRA to impose such a requirement nationwide, the SAVE Act is overreach.

2. Violation of the National Voter Registration Act and Supremacy Clause Issues

Although the SAVE Act seeks to amend the NVRA, it would conflict with the NVRA’s original intent to streamline registration and reduce barriers.

The NVRA requires only a sworn attestation of citizenship under penalty of perjury, and courts have invalidated stricter state measures as preempted by federal law.

Kansas’s similar proof-of-citizenship law, for instance, was ruled unconstitutional after blocking over 30,000 eligible voters.

The SAVE Act’s nationwide mandate could be seen as an end-run around these rulings, potentially violating the Supremacy Clause by forcing states to adopt federal standards that disrupt their own election administration without clear constitutional justification. This preemption of state processes, including online and mail-in registration, would impose unfunded burdens on local officials and expose them to legal risks, further straining the federal-state balance.

3. Undue Burden on the Fundamental Right to Vote

Voting is a fundamental right protected by the First and Fourteenth Amendments, and laws imposing severe burdens must survive strict scrutiny—meaning they must be narrowly tailored to a compelling government interest.

The SAVE Act would disenfranchise millions of eligible citizens who lack easy access to required documents.

Estimates suggest 21 million Americans don’t have readily available proof of citizenship, with disproportionate impacts on women (due to name changes), low-income voters, rural residents, students, older adults, and minorities.

Requiring in-person submission and excluding common IDs like student or state-issued cards adds barriers, potentially amounting to a modern poll tax if obtaining documents incurs costs (violating the 24th Amendment).

Non-citizen voting is already illegal and exceedingly rare (e.g., audits in Georgia and elsewhere found negligible instances), so the Act’s burdens far outweigh any demonstrated need, failing constitutional tests under cases like Anderson v. Celebrezze (1983).

Federal Power Grab On Voting Still Flunks Basic Civics Test

CATO reports Federal Power Grab On Voting Still Flunks Basic Civics Test

The Framers greatly feared that a president or ruling national faction might someday gain power over the administration of elections. The Constitution guards against this danger by placing primary responsibility for elections with the states, subject to a rulemaking power that Congress has wisely used sparingly. The proposed SAVE Act, which passed the House yesterday, and the broader MEGA Act would impose rash, perhaps even unworkable, new rules while arming the president with dangerous new powers to harass and menace localities and officials whose decisions on election administration are not to his liking.

There’s nothing wrong with voter ID—most states use it, generally with good results. But the SAVE Act and MEGA Act have little to do with that issue. They are fueled by alarms about supposedly widespread noncitizen voting and voter impersonation that simply aren’t borne out by the evidence. Their new demands for documentary proof of citizenship (DPOC) go beyond what almost any state has chosen to enact voluntarily and would impose serious burdens on both qualified citizen voters and administrators.

The bills expose local administrators to a risk of imprisonment if they fail to tick the right boxes even when no unqualified person in fact registers or votes. The new rules would take effect immediately, requiring states to set aside existing preparations for the 2026 elections and scramble to train staff and revamp data systems on the fly. They would abolish all-mail electoral systems that are popular out West, requiring many qualified, US-born voters to pay repeated visits to a distant county office if they hope to stay on the rolls. The acts give the federal government new powers of prosecution and discretionary regulation that would be highly susceptible to misuse, as well as empowering busybody or ideologically motivated private citizens to sue.

There’s more. The bill would force states to turn over voter rolls to these same federal overseers notwithstanding serious privacy concerns and the high chance of misuse. The broader MEGA Act even reaches out to ban the use of ranked-choice voting for federal races in states such as Alaska and Maine, even though there is zero evidence that such voting has caused any election integrity problems in those states. While election reform is most likely to endure when done with bipartisan support, the bills are, at this point, almost a purely partisan play.

Pressure on Senate Majority Leader Thune

The Fraud Scorecard

• Utah: 1 registered, 0 voted, 2.1 million registered voters
• Idaho: 36 “likely”, voted uncertain, one million voters
• Louisiana: 390 noncitizen registrants, 79 of whom had voted in at least one election over the last several decades (out of 2.9 million registrants).
• Montana: 23 possible noncitizen registrants (out of approximately 785,000 people registered).
• Georgia: A 2024 audit found 20 registered noncitizens (out of 8.2 million registrations).
• Michigan: The Macomb County clerk, Anthony Forlini announced to great fanfare that he’d found 15 noncitizens on his county’s voter rolls of over 724,000 registered voters. The incumbent secretary of state, Jocelyn Benson, investigated the 15 files. Three were U.S. citizens, four were previously removed from voter rolls, four were under further investigation and four do seem to be noncitizens.
• Arizona: In Maricopa County overseeing voter registration, there was a total of two possible instances of noncitizens voting out of some 2.5 million registered voters.

Synopsis

While the Act aims to enhance election integrity, its unconstitutionality stems from encroaching on state powers, conflicting with established federal law, and erecting discriminatory barriers to voting.

The purpose of the act is to disenfranchise women and minorities who tend to vote Democratic.

The act is not about “voter ID” or it would not be written the way that it was.

If enacted, the Save Act would likely face immediate legal challenges, similar to prior state efforts. Courts would swiftly strike the act.

If Trump tries to do this by Executive Order as threatened, there is a near 100 percent chance of swift court strike down, and the Supreme Court will not come to Trump’s aid.

Pressure is on Senate Majority Leader John Thune to remove the filibuster so the bill can pass. He is wisely resisting the temptation.

The bill would highly likely be struck down in the courts. Removing the filibuster has serious repercussion the next time Democrats hold the White House.

Trump’s Voting Claims Are False

Also see Trump’s Voting Claims Are False. So What Is the Save Act Really About?