No, Republicans Can’t “Nationalize” Elections: The Unconstitutionality of the SAVE Act
Introduction:
In past remarks, President Trump has called out what he believes are egregious examples of voter fraud, and has also recently been quoted demanding that Republicans “nationalize” elections. Although nationalizing elections itself brings up Constitutional questions, its accompanying law, H.R. 22, known as The Safeguard American Voter Eligibility Act (SAVE), raises more concerns. The law was principally introduced by Congressman Chip Roy (R-TX) with wholehearted support from President Donald Trump. SAVE would amend the National Voter Registration Act of 1993 (NVRA) to create a requirement for Documentary Proof of Citizenship (DPOC) — such as passports, birth certificates, or government issued identification like drivers’ licenses — in order to cast a vote in elections. DPOC has been a contentious issue in recent decades, with critics focused both on the Constitutionality of such requirements as well as the political impact these forms of legislation would have.
Most significant to the debate over DPOC are Sections Two and Four of the First Article of the U.S. Constitution. The “Qualifications Clause” of section two states that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature” [1]. Essentially, states have the power to determine the qualifications that voters need to cast a ballot in a federal election, so long as such qualifications are not lower than those to elect members of the State Legislature. The language of the Qualifications Clause is also repeated in the 17th Amendment, which changes the way Senators are elected. Meanwhile, the “Elections Clause” of the fourth section articulates that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators” [2]. The Elections Clause, in other words, grants states the power to determine the “times, places, and manner of holding elections” but also gives Congress the power to supersede these “regulations” in most instances [3].
Other significant parts of the Constitution for this question include the Equal Protection Clause of the 14th Amendment, (“No State shall… deny to any person within its jurisdiction the equal protection of the laws”) as well as the 24th Amendment, which deals with poll taxes.
Ultimately, this article concludes that the SAVE Act is an ultra vires (acting beyond one’s authority) exercise of congressional power that violates the Qualifications Clause, creates unconstitutional burdens under the 14th Amendment, risks violating the 24th Amendment, and necessitates a preliminary injunction to prevent the irreparable disenfranchisement of millions in the 2026 midterms.
Section 1: The Qualifications Clause
We first turn to the specific language of the Bill. After establishing the specific DPOC requirements to be verified as a citizen, SAVE establishes exceptions for individuals who fail to provide DPOC in Section 2(j)(ii) and (iii) of the Act. SAVE permits individuals to provide an attestation that they are a citizen, so long as states collect an affidavit “affirming the applicant sufficiently established United States citizenship for purposes of registering to vote” [4]. Crucially, SAVE dictates that “the Election Assistance Commission shall develop a uniform affidavit for use by State and local officials … includ[ing] an explanation of the minimum standards required for a State or local official to register an applicant who cannot provide documentary proof of United States citizenship” [5].
Through this requirement, the Federal Government is attempting to determine who is qualified to vote by mandating a uniform affidavit verified not by the states which possess the Constitutional authority to make this determination, but by the Federal Government. If an individual fails to present DPOC for any multitude of reasons, a Federally created affidavit would now preclude them from Federal elections.
Defenders of the SAVE Act argue that Congress is authorized to regulate the “manner” of elections. They contend that, if one is to accept a citizenship requirement in order to vote, Congress possesses the authority to standardize this verification process, simply moving the verification from an honor system (attestation) to a verification system (providing DPOC or meeting the requirements of this affidavit).
There are three primary arguments against the interpretation. The first comes from Justice Thomas’ dissent in Arizona v. ITCA. Ironically, Thomas wrote his dissent in defense of Arizona’s DPOC law, but it now serves as the most concrete basis for a legal challenge to the SAVE Act. Substituting the “additional information [Arizona] determines is necessary” during ITCA for the distinct requirements that states not compliant with the SAVE Act may have, the Qualifications Clause presents the clearest argument against the Constitutionality of the law [6].
First, Thomas challenges arguments that cite the Elections Clause to grant Congressional oversight over citizenship verification. He addresses “time, place, and manner” regulations, interpreting them to mean simply the “when, where, and how” of elections. Specifically, he states “the ‘Manner of holding Elections’ was construed to mean the circumstances under which elections were held and the mechanics of the actual election” — in other words, the Founding Fathers interpreted “manner” to mean logistics, not verification method [7].
Thomas affirms state independence in qualification determination and verification, citing Madison in Federalist Papers No. 52 when he states that “to have left [the definition of the right of suffrage] open for the occasional regulation of the Congress would have been improper” [8]. He ultimately contends that Federal oversight was explicitly not part of the “Framers’ design” [9]. Most concretely, Thomas cites the majority opinion, which affirms that “the power to establish voting requirements is of little value without the power to enforce those requirements” [10]. He ultimately concludes that, regardless of what the NVRA may say, “it matters not whether the United States has specified one way in which it believes Arizona might be able to verify citizenship; Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary” [11]. Because the NVRA is a statute, like the SAVE Act would be, it is necessarily superseded by the Constitution.
Thomas’ argument is logically sound as well: States only possess legitimate authority over who is qualified to vote if they also possess the power to determine how they are confirming this qualification — otherwise other powers may choose to alter this verification method and thus alter their qualification requirements. Further, and more broadly, it follows that a union of states which sends Members of Congress as representatives of the state should have the power to determine the way these representatives are elected beyond the simple logistics of holding an election.
The second challenge to this “manner” argument comes from a practical perspective. Although this may appear to be simply a procedural change, when a procedural change is so burdensome that it prevents qualified people from voting, I contend that it becomes a substantive change to the qualifications. For example, if Congress passed a law under the “manner” provision of the Elections Clause stating that all voters must prove their residency by displaying a 10-year history of property tax receipts, they have not changed the residency requirement, but they have effectively made it impossible for most renters to qualify. Similarly, the SAVE Act has the capacity to disenfranchise over 21 million residents whose most fundamental right is placed in the hands of a federally-determined affidavit. When this change so drastically affects the right to vote, it can no longer be considered a logistical change as the Framers intended the Elections Clause to oversee.
Third and finally, the vagueness of Section 2(j)(ii) and (iii) means that the only concrete standards established in SAVE are DPOC requirements, where another challenge emerges. If Congress can dictate the specific documents required, they are effectively redefining the qualification to vote. If individuals are citizens but do not possess passports or drivers’ licenses, and SAVE only permits such documents, Congress has effectively added the qualification of possessing a passport or driver’s license to be eligible to vote, a clear infringement of state authority in the Qualifications Clause.
Section 2: The 14th Amendment and Unequal Disenfranchisement
Although specific racial or gender boundaries are not established in the SAVE Act, the disproportionality of those who are potentially disenfranchised by the law is severe enough that it warrants questions about scrutiny under the basis of the Equal Protection Clause of the 14th Amendment. Over time, the Supreme Court has established a framework to determine the level of scrutiny laws receive on how they treat different groups. If the SAVE Act is found to severely burden the right to vote, strict scrutiny applies, and the government would have to prove this law is narrowly tailored to fulfill a compelling interest. Most laws fail this test.
I contend that the SAVE Act is qualitatively different from a standard voting law that would simply inconvenience voters, thus demanding strict scrutiny. Because SAVE disproportionately affects groups based on race, it touches on “suspect classes” that historically trigger the highest review. This doctrine is derived from Korematsu v. United States, which states that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” [12].
SAVE provides clear barriers for two specific minority groups on a disproportionate level. Indigenous communities, many of whom lack passports, birth certificates, or accepted tribal IDs, fail the specific requirements under the SAVE Act. More significantly, the sheer lack of voting centers in and around Indigenous reservations presents a barrier to citizenship verification, even for those who would possess the necessary documents to vote. Section 2e1b states that applicants are only verified by mail if “the applicant presents documentary proof of United States citizenship in person” [13]. In-person requirements present a burden that is uniquely difficult for indigenous communities, particularly in an era where states selectively close voting centers to make in-person voting even more difficult.
At the same time, many Black Americans born in the South during the Jim Crow Era were born outside of hospitals or in places where they were not properly administered a birth certificate and do not qualify for proof of naturalization since they never underwent a citizenship test. These citizens lack formal documentation that even some indigenous communities may possess with tribal ID. It is for these two reasons, among others, that studies suggest over 21.3 million people, or almost 10% of the voting population, may not be able to vote under SAVE [14]. Unless SAVE expects that state governments will be able to contact and verify citizenship for these 21.3 million people and properly file the expected affidavits before the 2026 election, it is likely that many voters are not properly verified and thus removed from voter registries.
The racial disproportionality here warrants strict scrutiny independently, alongside the political factor. When different racial groups have such different voting patterns, SAVE has the potential to dictate or alter election results in favor of one party, another basis on which the law requires further examination.
This scrutiny debate yields two main implications. First, the Court must take the time to properly address these questions. It ought to issue a preliminary injunction to avoid disrupting the status quo and risking certain communities being disenfranchised while the Court decides after the 2026 midterm elections. Second, supporters of SAVE need to prove that there exists a “persuasive justification” (see Ginsburg in _____) to pass SAVE out of risk of harming these minority communities [15]. This is becoming increasingly difficult, as claims of mass voter fraud have been disproven on every occasion since the 2020 election. According to most analysis, the fear of non-citizens voting or other forms of voter fraud are not much more than conspiracy theories and are not on the scale to impact or swing elections [16].
When disproportionate effects run the certain risk of altering election results, but voter fraud has not been proven to impact elections, it seems that there is not only no “persuasive justification” for SAVE, but also that disenfranchisement has a far more significant impact on election results than voter fraud in 2026.
Section 3: The 24th Amendment
Most of the DPOC requirements identified by SAVE require a fee, and because exceptions to DPOC are unconstitutional as aforementioned due to the Federal oversight on affidavits, SAVE acts as both a financial barrier and a poll tax. Not only does the 24th Amendment state clearly that “the right of citizens of the United States to vote… shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax,” but Harman v. Forssenius instructs us that even a “seemingly small” cost is unconstitutional [17, 18]. Thus, if the only way to legally verify voter qualifications is through DPOC, the barrier to obtaining those documents acts as an effective poll tax.
Section 4: The Case for a Preliminary Injunction
Regardless of whether or not the Court rules that SAVE is constitutional, a preliminary injunction must block the law should it pass the Senate and be signed into law. If SAVE is enacted and any group of voters loses suffrage as a result of the law and are thus unable to cast ballots in the 2026 midterm elections, it runs the risk of creating irreparable harm. Even if the Court finds SAVE unconstitutional after the elections, there is no legal or financial remedy that can restore a lost vote. Because of this, the Court should not permit even a small risk of disenfranchisement, because it is a violation of the most fundamental right of our democracy and such a violation cannot reasonably be fixed later.
Second, we apply the Purcell Principle here. Purcell determined that courts may not change election rules on the “eve of an election” to avoid voter confusion. Implementing SAVE in early 2026 is a significant shift in the status quo, requiring millions of voters to request documentation or obtain state approval within the few months between its passage and the beginning of voting. We look to the Court’s own ruling in Abbott v. LULAC which permitted Texas’ redrawn Congressional map because it was “too close” to the 2026 election [19]. It follows that if an electoral change that would cause confusion in one state is “too close” to November 2026 when determined in December 2025, a change that causes significant changes across all 50 has certainly not been given the timeframe to properly be implemented.
When considering states like Texas that hold primaries on March 3 with registration deadlines in February and North Carolina holding early voting in mid-February, it is possible that SAVE is implemented during the election process and thoroughly disrupts the 2026 midterms.
Conclusion:
This article concludes that the SAVE Act is unconstitutional for its violation of the Qualifications Clause, its unequal effect on racial groups that warrants strict scrutiny, and the risk of DPOC acting as a modern poll tax in violation of the 24th Amendment. Regardless of the Court’s opinion on these arguments, a preliminary injunction is necessary to prevent a significant impact on the 2026 midterm elections. Although there is still a chance the legislation fails in the Senate, it is imperative that the Courts act quickly to ensure that the SAVE Act cannot be passed and drastically change the landscape of elections. Political experts may argue the SAVE Act is a ploy by Republicans to disenfranchise communities in pivotal states with high indigenous and Black populations, but it is more concerningly a ploy by Congress to overstep its authority and violate the Constitution. For these reasons, it is crucial for the SAVE Act to be halted or struck down entirely in order for the Court to validate the past 60 years of civil rights as well as the past two centuries years of state independence. On the 250th anniversary of the United States, it is vital that the Courts do not permit violations of the singular most important right we have.