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 [1]. Although nationalizing elections already brings up Constitutional questions, its accompanying law H.R. 22, known as The Safeguard American Voter Eligibility Act (SAVE), certainly raises more [2]. The law was introduced by Congressman Chip Roy (R-TX) from the 21st Congressional district, with wholehearted support from President Donald Trump [3]. SAVE is an amendment to the National Voter Registration Act of 1993 (NVRA) that creates the requirement for Documentary Proof of Citizenship (DPOC) in order to cast a vote in elections [4]. Examples of DPOC, as presented in the Bill, include passports, birth certificates, or government issued identification like drivers’ licenses [5]. DPOC has been a contentious issue over the past decades, focused both on the Constitutionality of such laws as well as the political impact these forms of legislation would have.

Most significant to the debate over DPOC are Article 1 Section 2 Clause 2 and Article 1 Section 4 Clause 1 of the U.S. Constitution. Section 2 Clause 2, dubbed the “Qualifications Clause,” states that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature” [6]. 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 [7]. Meanwhile, Section 4 Clause 1, referred to as the “Elections Clause,” 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” [8]. The Elections Clause, in other words, grants power for states to determine the “times, places, and manner of holding elections” but also gives Congress the power to supersede these “regulations” in most instances.

Other significant parts of the Constitution for this question includes 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 the question of poll taxes [9].

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 I: 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 [10]. SAVE permits individuals to provide an attestation (pledge under penalty of perjury) 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” [11]. 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” [12]

Through this affidavit, 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 (as will be more clearly established below) but by the Federal Government. If an individual fails to present DPOC for any multitude of reasons, a Federally created affidavit would now hold the power to determine if they are qualified to vote in Federal elections.

Defenders of the SAVE Act cite the power Congress is granted to regulate the “manner” of elections specifically; 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 (“ITCA”) [13]. 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 [14].

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 [15]. 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 [16].

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” [17]. He ultimately contends that Federal oversight was explicitly not part of the “Framers’ design” [18]. 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” [19]. 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” [20]. 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: first, 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. Second, 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 per se, but they have made it impossible for most renters to qualify. Similarly, this article will elaborate on the capacity for the SAVE Act to disenfranchise over 21 million residents whose most fundamental right is placed in the hands of a Federally determined affidavit [21]. 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 (e.g. a passport or driver’s license), 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 II: 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 under 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. Under strict scrutiny, if the SAVE Act is found to severely burden the right to vote, the government must prove this law is narrowly tailored to a compelling state interest [22]. Most laws would fail this test. Under rational basis, the least strict interpretation, laws only need to be rationally related to a legitimate interest, and most laws will pass this test under the deference rational basis provides to Congress [23].

I contend that the SAVE Act is qualitatively different from a standard voting law that would simply inconvenience voters and thus it demands strict scrutiny. Because SAVE disproportionately affects groups based on race, it touches on “suspect classes” that historically trigger the highest review [24]. 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” [25].

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 [26]. More significantly, the sheer lack of voting centers in and around Indigenous reservations prevents a barrier to citizenship verification, even for those who would possess the necessary documents to vote [27]. Section 2e1b states that applicants are only verified by mail if “the applicant presents documentary proof of United States citizenship in person” [28]. 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 in places where they were not properly administered a birth certificate due to racist laws and do not qualify for proof of naturalization since they never underwent a citizenship test [29]. These citizens lack formal documentation that even some indigenous communities may possess with tribal ID. It is for these two reasons, among many others not covered here, that studies suggest over 21.3 million people, or almost 10% of the voting population, may not be able to vote under SAVE [30]. 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 in which the law requires further examination.

This scrutiny debate yields two main outcomes. First, the Court must take the time to properly address these questions. As will be elaborated on later, there should be a preliminary injunction so as to not disrupt the status quo and risk certain communities being disenfranchised while the Court decides after the 2026 midterm elections. Second, supporters of SAVE need to prove that there exists a “compelling” state interest to pass SAVE out of risk of harming these minority communities. This is becoming increasingly difficult, as claims of mass voter fraud have been disproven on every occasion since the 2020 election [31]. 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 [32].

When disproportionate effects runs the certain risk of altering election results but voter fraud has so far not been proven to be on the scale of impacting elections, it seems that there is not only no compelling state interest for SAVE but also that disenfranchisement has a far more significant impact on election results than voter fraud in 2026. Thus, we can conclude the SAVE Act comprehensively fails the strict scrutiny test by failing to prove the government has a compelling need to restrict the rights of so many.

Section III: 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 an effective poll tax [33]. 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,” we can also look to Harman v. Forssenius that even a “seemingly small” cost is unconstitutional [34]. Thus, if the only way to Constitutionally verify voter qualifications is through DPOC; the barrier to obtaining those documents acts as an effective poll tax.

Section IV: The Case for a Preliminary Injunction

Regardless of whether or not the Court rules that SAVE is constitutional, it is necessary for a preliminary injunction to block the law should it pass the Senate and be signed into law by President Trump. 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 it cannot reasonably be fixed later.

Secondarily, 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 [35]. 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 changing the map back was “too close” to the 2026 election [36]. 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 that states like Texas, North Carolina, and Illinois have already held primaries, an implementation of SAVE during the election process would thoroughly disrupt the 2026 midterms [37].

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 explain the SAVE Act as a ploy by Republicans to disenfranchise communities in pivotal states with high indigenous and black populations, but it is more importantly 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.

Endnotes:

[1] See Donald J. Trump, Remarks on The Dan Bongino Show (Feb. 2, 2026), reported in Peter Nicholas, Trump Says Republicans Should 'Nationalize' Elections, NBC News (Feb. 2, 2026), www.nbcnews.com/politics/elections/trump-republicans-nationalize-elections-rcna257098.

[2] Safeguard American Voter Eligibility Act, H.R. 22, 119th Cong. (2025) [hereinafter SAVE Act].

[3] Rep. Chip Roy, Rep. Roy Reintroduces Bill to Protect the Integrity and Sanctity of American Elections, Press Release (Jan. 9, 2025), https://roy.house.gov/media/press-releases/rep-roy-reintroduces-bill-protect-integrity-and-sanctity-american-elections. See also Cong. Rec. H1569 (daily ed. Apr. 10, 2025) (statement of Rep. Roy).

[4] SAVE Act, H.R. 22 § 2 (amending the National Voter Registration Act of 1993, 52 U.S.C. § 20501 et seq.).

[5] Id. § 2(a) (defining acceptable forms of documentary proof of citizenship to include REAL ID Act-compliant identification indicating citizenship, a valid U.S. passport, military ID with birth record, or a government-issued photo ID indicating U.S. birthplace).

[6] U.S. Const. art. I, § 2, cl. 1.

[7] U.S. Const. amend. XVII ("The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.").

[8] U.S. Const. art. I, § 4, cl. 1.

[9] U.S. Const. amend. XIV, § 1; U.S. Const. amend. XXIV.

[10] SAVE Act, H.R. 22 § 2(j)(ii)–(iii).

[11] Id. § 2(j)(ii) (permitting states to register an applicant who signs an attestation under penalty of perjury affirming citizenship where a state official countersigns an affidavit attesting to the sufficiency of the showing).

[12] Id. § 2(j)(iii).

[13] Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013) (Thomas, J., dissenting) [hereinafter ITCA].

[14] Id. at 23 (Thomas, J., dissenting) ("[T]he Qualifications Clause . . . necessarily includes the related power to determine whether those qualifications are satisfied.").

[15] Id. at 29 (Thomas, J., dissenting).

[16] Id. at 30 (Thomas, J., dissenting) (examining the founding-era understanding of "manner" as limited to the logistics of conducting elections).

[17] Id. at 26 (Thomas, J., dissenting) (quoting Federalist No. 52, at 323 (James Madison)).

[18] Id. at 26 (Thomas, J., dissenting).

[19] Id. at 28 (Thomas, J., dissenting) (quoting majority opinion at 17).

[20] Id. at 36 (Thomas, J., dissenting).

[21] Brennan Center for Justice, 21.3 Million American Citizens of Voting Age Don't Have Ready Access to Citizenship Documents (June 11, 2024), https://www.brennancenter.org/our-work/analysis-opinion/213-million-american-citizens-voting-age-dont-have-ready-access (reporting survey finding that 9.1 percent of American citizens of voting age, or approximately 21.3 million people, lack ready access to documentary proof of citizenship such as a U.S. birth certificate, passport, naturalization certificate, or citizenship certificate).

[22] See generally City of Boerne v. Flores, 521 U.S. 507 (1997) (explaining strict scrutiny as requiring narrow tailoring to a compelling governmental interest).

[23] See FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) (describing rational basis review as requiring only that a law be rationally related to a legitimate government interest).

[24] See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224–26 (1995) (reaffirming that classifications based on race are subject to strict scrutiny as "suspect classifications").

[25] Korematsu v. United States, 323 U.S. 214, 216 (1944). Note: While Korematsu's holding was repudiated in Trump v. Hawaii, 585 U.S. 667 (2018), its articulation of strict scrutiny for racial classifications remains foundational.

[26] Native American Rights Fund, All Versions of the SAVE Act Harm Native Voters (2025), https://narf.org/save-act-hurts-native-voters/ (noting that tribal IDs do not include birthplace information and that American Indian and Alaska Native voters would need to supply an additional document, such as a certified birth certificate, to satisfy SAVE Act requirements).

[27] Brennan Center for Justice, Study Finds Extensive Barriers Restrict Native Americans from Voting (Nov. 19, 2024), https://www.brennancenter.org/our-work/analysis-opinion/study-finds-extensive-barriers-restrict-native-americans-voting ("The burden of obtaining documentary proof of citizenship is heightened for those on tribal lands, who must travel extreme distances to the nearest county records office.").

[28] SAVE Act, H.R. 22 § 2(e)(1)(B).

[29] See The Lens, Black Elders Without Birth Records Could Lose Vote Under SAVE America Act (Mar. 27, 2026), https://thelensnola.org/2026/03/27/save-america-act-would-narrow-ballot-access-for-black-elders-without-birth-records-could-lose-vote-under-save-america-act/ (reporting Center on Budget and Policy Priorities data showing that one-fifth of Black Americans born in 1939 and 1940 were never issued birth certificates as a result of racially exclusionary hospital practices and record-keeping failures under Jim Crow).

[30] Brennan Center for Justice, supra note 21.

[31] See Bipartisan Policy Center, Five Things to Know About the SAVE America Act (Feb. 2, 2026), https://bipartisanpolicy.org/article/five-things-to-know-about-the-save-act/ (noting that Utah's review of more than 2 million registered voters found only one confirmed instance of noncitizen registration and zero instances of noncitizen voting, and that USCIS data indicates only 0.04% of voter verification cases are returned as noncitizens).

[32] Id.; see also Inst. for Responsive Gov't, The SAVE Act: How a Proof of Citizenship Requirement Would Impact Elections (Jan. 30, 2025), https://responsivegov.org/research/the-save-act-how-a-proof-of-citizenship-requirement-would-impact-elections/ (“Backers of the SAVE Act say requiring voters to show citizenship documents is necessary to protect election integrity — though they have yet to provide evidence that instances of illegal voting by noncitizens are anything but incredibly rare.”).

[33] See U.S. Dep't of State, Passport Application Fees (fees for first-time adult passports); see also State vital records agencies (charging fees for certified birth certificate copies, typically ranging from $10–$45 per state).

[34] U.S. Const. amend. XXIV, § 1; Harman v. Forssenius, 380 U.S. 528, 542 (1965) (“The poll tax is abolished absolutely as a prerequisite to voting in federal elections, and no equivalent or milder substitute may be imposed.”).

[35] Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam) (“[C]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”).

[36] Abbott v. League of United Latin American Citizens, 607 U.S. (Dec. 4, 2025) (No. 25A608) (staying district court injunction against Texas's 2025 congressional map on grounds that the 2026 election cycle was sufficiently underway to preclude late judicial intervention).

[37] See Texas Secretary of State, 2026 Primary Election (March 3, 2026 primary); North Carolina State Board of Elections, 2026 Primary Election (March 17, 2026); Illinois State Board of Elections, 2026 Primary Election (March 17, 2026).