The citizenship voting requirements in the SAVE America Act have no basis in the Constitution — and ignores precedent that states alone decide who gets to vote

Republican-led House of Representatives Voted on February 11, 2026 To agree to Protecting American Voter Eligibility Act – Or the Save America Act. The bill would require individuals to provide proof of citizenship when they register to vote and to provide photo ID when they vote in federal elections.

This is the third year in a row that the House of Representatives has issued similar legislation. Passage of the resolution in the Senate, which requires Democratic votes, still seems unlikely. But Republicans, from President Donald Trump on down, are clearly interested in finding ways to make that happen Strengthening election security – Although critics assert that the Save America Act would be unfair Depriving millions of citizens of their rights.

The Save America Act requires anyone who registers to vote in federal elections to first provide “documentary proof of U.S. citizenship” in person, such as a passport or birth certificate. The new version goes further than its predecessor by requiring many individuals who vote in federal elections to present photo ID at the polls indicating proof of U.S. citizenship.

Voting rights experts and advocacy organizations have detailed how to do this Legislation Can prevent voting. In part, they say, that will create barriers, especially in low-income and minority communities. People in such communities often lack acceptable forms of identification under the SAVE America Act For a variety of reasonsIncluding social and economic factors.

So far, at least 9% of American citizens of voting age – nearly 21 million people – do not. Even get driver’s licensesNot to mention proof of citizenship. Despite this, many lawmakers support the bill as a way to achieve this Eliminate voting for non-citizens In the elections.

As a legal researcher who studies, among other things, Foreign intervention In the electionsI find considerations regarding the potential impacts of the Save America Act important, especially in light of this How rare That a non-citizen actually votes in a federal election.

However, it is important to consider a more fundamental question: Is the Save America Act constitutional?

How the Save America Act would change voting requirements

The Save America Act would prevent that State election officials prohibit an individual from registering to vote in federal elections unless that person provides “documentary proof of United States citizenship.” Furthermore, it prohibits individuals from voting unless they submit such proof to the polls each time they cast a ballot, unless their state agrees to submit voter registration lists to the U.S. Department of Homeland Security on a quarterly basis.

Acceptable forms Proof of voter registration It will include a REAL ID proving US citizenship – most of which don’t – As well as an American passport Or a US military ID card.

So – if the Save America Act becomes law – if someone turns 18 or moves interstate and wants to register to vote in a federal election in their new home, they will likely be denied if they don’t have any of these documents readily available. At best, they can still fill out the registration form, but will have to mail acceptable proof of citizenship.

For married people whose family names have been changed, among others, Questions remain On whether birth certificates could be considered acceptable proof of citizenship for them.

The Constitution says little about voting rights

Despite the national conversation sparked by the Save America Act, it is unclear whether Congress has the authority to enact it. This is the main constitutional question.

The American Constitution No nationality requirement is imposed When it comes to voting. In fact, the original text of the Constitution said very little about the right to vote. It wasn’t until lawmakers passed it Subsequent modificationsFrom the Civil War to the 1970s, the Constitution even explicitly prohibits voting laws that discriminate on the basis of race, sex, or age.

Apart from these modificationsThe Constitution is largely silent about who is entitled to vote.

Who then gets to decide whether someone is eligible to vote? No matter the election, the answer is always the same: states.

Indeed, states are charged by constitutional design with setting voter eligibility requirements – a product of our federal system. For state and local elections, Tenth Amendment It gives states the power to organize their own internal elections as they see fit.

States also have the right to decide who can vote in federal elections, which include presidential and congressional elections.

When it comes to presidential elections, for example, countries have – As I wrote previously – Exclusive authority under the Constitution Voter clause To decide how presidential elections are conducted within its borders, including who is entitled to vote there.

States exercise similar authority in congressional elections. That is, according to Article 1 of the Constitution And the constitution Seventeenth AmendmentIf someone can vote in their state’s legislative elections, they have the right to vote in congressional elections as well.

Conversely, the Constitution gives Congress zero authority to control voter eligibility requirements in federal elections. In fact, in a 2013 U.S. Supreme Court ruling re Arizona v. Tribal Council In that case, the court asserted that nothing in the Constitution “grants room for the view that qualifications to vote in federal elections should be determined by Congress.”

Is the Save America Act constitutional?

The Save America Act presents a constitutional dilemma. By requiring individuals to show documentary proof of US citizenship to vote, the Save America Act implies that a person must be a US citizen in order to vote in federal elections.

In other words, Congress would establish voting qualifications, a power that the Constitution leaves exclusively to the states.

Indeed, while all states currently restrict the voting rights of citizens, legal voting by noncitizens is not without precedent. like numerous Scientists And I noticedat least 19 states extended voting rights to free male “populations,” including noncitizens, from our country’s founding through and throughout the 19th century.

Today, there are more than 20 municipalities across the country, plus the District of Columbia, Allowing non-citizen permanent residents To vote in local elections.

These days any state can similarly extend the right to vote in state and federal elections to non-citizen permanent residents. This is within their constitutional powers. If this happens, there could be a conflict between that state’s voter eligibility laws and the Save America Act.

Typically, when state and federal laws conflict, The sovereignty clause in the constitution Provides that federal law prevails.

However, in this case, where Congress has no actual authority to enforce voter qualifications, the Save America Act appears to have no constitutional basis on which to rest.

Reconciling the Save America Act with the Constitution

So why? 108 representatives of the United States Did you support a bill that would potentially overstep the powers of Congress?

Of course, politics plays some role here. That is, non-citizen voting is a major concern Between Republican politicians and voters. Every co-sponsor of the SAVE America Act is a Republican, as were all but four members 220 representatives of the United States Who voted to pass the Savings Act in April 2025.

When it comes to the constitutionality of the Save America Act, proponents simply assert that Congress is acting within the scope of its authority.

Specifically, many supporters cited the Constitution Election clausewhich gives Congress the power to regulate “the times, places, and manner” of congressional elections, as support for this assertion. Utah Senator Mike Lee, for example, explicitly indicated Election clause when defending the SAVE Act earlier in 2025.

But the Elections Clause only gives Congress the power to regulate election procedures, not the qualifications of voters. The Supreme Court explicitly stated this in the Tribal Council ruling.

Congress could, for example, require the states to adopt a unified federal system Voter registration form Even including the nationality question in the aforementioned form. What it cannot do, however, is implement a non-negotiable mandate that effectively tells states they can never allow a noncitizen to vote in federal elections.

Right now, the Save America Act is just legislation. If it passes the Senate, Trump will almost certainly sign it into law, given his recent calls for Republicans, among other factors. To nationalize elections. If that happens, courts will have to consider the legality of the Save America Act within the country’s constitutional design.

This is an update to The article was originally published On April 22, 2025.