[House Report 118-552]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-552
======================================================================
SAFEGUARD AMERICAN VOTER ELIGIBILITY ACT
_______
June 14, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Steil, from the Committee on House Administration,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 8281]
The Committee on House Administration, to whom was referred
the bill (H.R. 8281) to amend the National Voter Registration
Act of 1993 to require proof of United States citizenship to
register an individual to vote in elections for Federal office,
and for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 7
Background and Need for Legislation.............................. 8
Committee Action................................................. 23
Committee Consideration.......................................... 24
Committee Votes.................................................. 24
Committee Oversight Findings..................................... 24
Statement of Budget Authority and Related Items.................. 24
Congressional Budget Office Estimate............................. 25
Performance Goals and Objectives................................. 25
Duplication of Federal Programs.................................. 25
Advisory on Earmarks............................................. 25
Federal Mandates Statement....................................... 25
Advisory Committee Statement..................................... 26
Applicability to Legislative Branch.............................. 26
Section-by-Section Analysis...................................... 26
Changes in Existing Law as Reported.............................. 29
Minority Views................................................... 47
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Safeguard American Voter Eligibility
Act'' or the ``SAVE Act''.
SEC. 2. ENSURING ONLY CITIZENS ARE REGISTERED TO VOTE IN ELECTIONS FOR
FEDERAL OFFICE.
(a) Definition of Documentary Proof of United States Citizenship.--
Section 3 of the National Voter Registration Act of 1993 (52 U.S.C.
20502) is amended--
(1) by striking ``As used'' and inserting ``(a) In General.--
As used''; and
(2) by adding at the end the following:
``(b) Documentary Proof of United States Citizenship.--As used in
this Act, the term `documentary proof of United States citizenship'
means, with respect to an applicant for voter registration, any of the
following:
``(1) A form of identification issued consistent with the
requirements of the REAL ID Act of 2005 that indicates the
applicant is a citizen of the United States.
``(2) A valid United States passport.
``(3) The applicant's official United States military
identification card, together with a United States military
record of service showing that the applicant's place of birth
was in the United States.
``(4) A valid government-issued photo identification card
issued by a Federal, State or Tribal government showing that
the applicant's place of birth was in the United States.
``(5) A valid government-issued photo identification card
issued by a Federal, State or Tribal government other than an
identification described in paragraphs (1) through (4), but
only if presented together with one or more of the following:
``(A) A certified birth certificate issued by a
State, a unit of local government in a State, or a
Tribal government which--
``(i) was issued by the State, unit of local
government, or Tribal government in which the
applicant was born;
``(ii) was filed with the office responsible
for keeping vital records in the State;
``(iii) includes the full name, date of
birth, and place of birth of the applicant;
``(iv) lists the full names of one or both of
the parents of the applicant;
``(v) has the signature of an individual who
is authorized to sign birth certificates on
behalf of the State, unit of local government,
or Tribal government in which the applicant was
born;
``(vi) includes the date that the certificate
was filed with the office responsible for
keeping vital records in the State; and
``(vii) has the seal of the State, unit of
local government, or Tribal government that
issued the birth certificate.
``(B) An extract from a United States hospital Record
of Birth created at the time of the applicant's birth
which indicates that the applicant's place of birth was
in the United States.
``(C) A final adoption decree showing the applicant's
name and that the applicant's place of birth was in the
United States.
``(D) A Consular Report of Birth Abroad of a citizen
of the United States or a certification of the
applicant's Report of Birth of a United States citizen
issued by the Secretary of State.
``(E) A Naturalization Certificate or Certificate of
Citizenship issued by the Secretary of Homeland
Security or any other document or method of proof of
United States citizenship issued by the Federal
government pursuant to the Immigration and Nationality
Act.
``(F) An American Indian Card issued by the
Department of Homeland Security with the classification
`KIC'.''.
(b) In General.--Section 4 of the National Voter Registration Act of
1993 (52 U.S.C. 20503) is amended--
(1) in subsection (a), by striking ``subsection (b)'' and
inserting ``subsection (c)'';
(2) by redesignating subsection (b) as subsection (c); and
(3) by inserting after subsection (a) the following new
subsection:
``(b) Requiring Applicants to Present Documentary Proof of United
States Citizenship.--Under any method of voter registration in a State,
the State shall not accept and process an application to register to
vote in an election for Federal office unless the applicant presents
documentary proof of United States citizenship with the application.''.
(c) Registration With Application for Motor Vehicle Driver's
License.--Section 5 of the National Voter Registration Act of 1993 (52
U.S.C. 20504) is amended--
(1) in subsection (a)(1), by striking ``Each State motor
vehicle driver's license application'' and inserting ``Subject
to the requirements under section 8(j), each State motor
vehicle driver's license application'';
(2) in subsection (c)(1), by striking ``Each State shall
include'' and inserting ``Subject to the requirements under
section 8(j), each State shall include'';
(3) in subsection (c)(2)(B)--
(A) in clause (i), by striking ``and'' at the end;
(B) in clause (ii), by adding ``and'' at the end; and
(C) by adding at the end the following new clause:
``(iii) verify that the applicant is a citizen of the
United States;'';
(4) in subsection (c)(2)(C)(i), by striking ``(including
citizenship)'' and inserting ``, including the requirement that
the applicant provides documentary proof of United States
citizenship''; and
(5) in subsection (c)(2)(D)(iii), by striking ``; and'' and
inserting the following: ``, other than as evidence in a
criminal proceeding or immigration proceeding brought against
an applicant who knowingly attempts to register to vote and
knowingly makes a false declaration under penalty of perjury
that the applicant meets the eligibility requirements to
register to vote in an election for Federal office; and''.
(d) Requiring Documentary Proof of United States Citizenship With
National Mail Voter Registration Form.--Section 6 of the National Voter
Registration Act of 1993 (52 U.S.C. 20505) is amended--
(1) in subsection (a)(1)--
(A) by striking ``Each State shall accept and use''
and inserting ``Subject to the requirements under
section 8(j), each State shall accept and use''; and
(B) by striking ``Federal Election Commission'' and
inserting ``Election Assistance Commission'';
(2) in subsection (b), by adding at the end the following:
``The chief State election official of a State shall take such
steps as may be necessary to ensure that residents of the State
are aware of the requirement to provide documentary proof of
United States citizenship to register to vote in elections for
Federal office in the State.'';
(3) in subsection (c)(1)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B) by striking the period at the
end and inserting ``; and''; and
(C) by adding at the end the following new
subparagraph:
``(C) the person did not provide documentary proof of United
States citizenship when registering to vote.''; and
(4) by adding at the end the following new subsection:
``(e) Ensuring Proof of United States Citizenship.--
``(1) Presenting proof of united states citizenship to
election official.--An applicant who submits the mail voter
registration application form prescribed by the Election
Assistance Commission pursuant to section 9(a)(2) or a form
described in paragraph (1) or (2) of subsection (a) shall not
be registered to vote in an election for Federal office
unless--
``(A) the applicant presents documentary proof of
United States citizenship in person to the office of
the appropriate election official not later than the
deadline provided by State law for the receipt of a
completed voter registration application for the
election; or
``(B) in the case of a State which permits an
individual to register to vote in an election for
Federal office at a polling place on the day of the
election and on any day when voting, including early
voting, is permitted for the election, the applicant
presents documentary proof of United States citizenship
to the appropriate election official at the polling
place not later than the date of the election.
``(2) Notification of requirement.--Upon receiving an
otherwise completed mail voter registration application form
prescribed by the Election Assistance Commission pursuant to
section 9(a)(2) or a form described in paragraph (1) or (2) of
subsection (a), the appropriate election official shall
transmit a notice to the applicant of the requirement to
present documentary proof of United States citizenship under
this subsection, and shall include in the notice instructions
to enable the applicant to meet the requirement.
``(3) Accessibility.--Each State shall, in consultation with
the Election Assistance Commission, ensure that reasonable
accommodations are made to allow an individual with a
disability who submits the mail voter registration application
form prescribed by the Election Assistance Commission pursuant
to section 9(a)(2) or a form described in paragraph (1) or (2)
of subsection (a) to present documentary proof of United States
citizenship to the appropriate election official.''.
(e) Requirements for Voter Registration Agencies.--Section 7 of the
National Voter Registration Act of 1993 (52 U.S.C. 20506) is amended--
(1) in subsection (a)--
(A) in paragraph (4)(A), by adding at the end the
following new clause:
``(iv) Receipt of documentary proof of United States
citizenship of each applicant to register to vote in elections
for Federal office in the State.''; and
(B) in paragraph (6)--
(i) in subparagraph (A)(i)(I), by striking
``(including citizenship)'' and inserting ``,
including the requirement that the applicant
provides documentary proof of United States
citizenship''; and
(ii) by redesignating subparagraph (B) as
subparagraph (C); and
(iii) by inserting after subparagraph (A) the
following new subparagraph:
``(B) ask the applicant the question, `Are you a citizen of
the United States?' and if the applicant answers in the
affirmative require documentary proof of United States
citizenship prior to providing the form under subparagraph
(C);''; and
(2) in subsection (c)(1), by inserting ``who are citizens of
the United States'' after ``for persons''.
(f) Requirements With Respect to Administration of Voter
Registration.--Section 8 of the National Voter Registration Act of 1993
(52 U.S.C. 20507) is amended--
(1) in subsection (a)--
(A) by striking ``In the administration of voter
registration'' and inserting ``Subject to the
requirements of subsection (j), in the administration
of voter registration''; and
(B) in paragraph (3)--
(i) in subparagraph (B), by striking ``or''
at the end; and
(ii) by adding at the end the following new
subparagraphs:
``(D) based on documentary proof or verified
information that the registrant is not a United States
citizen; or
``(E) the registration otherwise fails to comply with
applicable State law;'';
(2) by redesignating subsection (j) as subsection (l); and
(3) by inserting after subsection (i) the following new
subsections:
``(j) Ensuring Only Citizens Are Registered to Vote.--
``(1) In general.--Notwithstanding any other provision of
this Act, a State may not register an individual to vote in
elections for Federal office held in the State unless, at the
time the individual applies to register to vote, the individual
provides documentary proof of United States citizenship.
``(2) Additional processes in certain cases.--
``(A) Process for those without documentary proof.--
``(i) In general.--Subject to any relevant
guidance adopted by the Election Assistance
Commission, each State shall establish a
process under which an applicant who cannot
provide documentary proof of United States
citizenship under paragraph (1) may, if the
applicant signs an attestation under penalty of
perjury that the applicant is a citizen of the
United States and eligible to vote in elections
for Federal office, submit such other evidence
to the appropriate State or local official
demonstrating that the applicant is a citizen
of the United States and such official shall
make a determination as to whether the
applicant has sufficiently established United
States citizenship for purposes of registering
to vote in elections for Federal office in the
State.
``(ii) Affidavit requirement.--If a State or
local official makes a determination under
clause (i) that an applicant has sufficiently
established United States citizenship for
purposes of registering to vote in elections
for Federal office in the State, such
determination shall be accompanied by an
affidavit developed under clause (iii) signed
by the official swearing or affirming the
applicant sufficiently established United
States citizenship for purposes of registering
to vote.
``(iii) Development of affidavit by the
election assistance commission.--The Election
Assistance Commission shall develop a uniform
affidavit for use by State and local officials
under clause (ii), which shall--
``(I) include 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 to vote in elections for
Federal office in the State; and
``(II) require the official to
explain the basis for registering such
applicant to vote in such elections.
``(B) Process in case of certain discrepancies in
documentation.--Subject to any relevant guidance
adopted by the Election Assistance Commission, each
State shall establish a process under which an
applicant can provide such additional documentation to
the appropriate election official of the State as may
be necessary to establish that the applicant is a
citizen of the United States in the event of a
discrepancy with respect to the applicant's documentary
proof of United States citizenship.
``(3) State requirements.--Each State shall take affirmative
steps on an ongoing basis to ensure that only United States
citizens are registered to vote under the provisions of this
Act, which shall include the establishment of a program
described in paragraph (4) not later than 30 days after the
date of the enactment of this subsection.
``(4) Program described.--A State may meet the requirements
of paragraph (3) by establishing a program under which the
State identifies individuals who are not United States citizens
using information supplied by one or more of the following
sources:
``(A) The Department of Homeland Security through the
Systematic Alien Verification for Entitlements (`SAVE')
or otherwise.
``(B) The Social Security Administration through the
Social Security Number Verification Service, or
otherwise.
``(C) State agencies that supply State identification
cards or driver's licenses where the agency confirms
the United States citizenship status of applicants.
``(D) Other sources, including databases, which
provide confirmation of United States citizenship
status.
``(5) Availability of information.--
``(A) In general.--At the request of a State election
official (including a request related to a process
established by a State under paragraph (2)(A) or
(2)(B)), any head of a Federal department or agency
possessing information relevant to determining the
eligibility of an individual to vote in elections for
Federal office shall, not later than 24 hours after
receipt of such request, provide the official with such
information as may be necessary to enable the official
to verify that an applicant for voter registration in
elections for Federal office held in the State or a
registrant on the official list of eligible voters in
elections for Federal office held in the State is a
citizen of the United States, which shall include
providing the official with such batched information as
may be requested by the official.
``(B) Use of save system.--The Secretary of Homeland
Security may respond to a request received under
paragraph (1) by using the system for the verification
of immigration status under the applicable provisions
of section 1137 of the Social Security Act (42 U.S.C.
1320b-7), as established pursuant to section 121(c) of
the Immigration Reform and Control Act of 1986 (Public
Law 99-603).
``(C) Sharing of information.--The heads of Federal
departments and agencies shall share information with
each other with respect to an individual who is the
subject of a request received under paragraph (A) in
order to enable them to respond to the request.
``(D) Investigation for purposes of removal.--The
Secretary of Homeland Security shall conduct an
investigation to determine whether to initiate removal
proceedings under section 239 of the Immigration and
Nationality Act (8 U.S.C. 1229) if it is determined
pursuant to subparagraph (A) or (B) that an alien (as
such term is defined in section 101 of the Immigration
and Nationality Act (8 U.S.C. 1101)) is unlawfully
registered to vote in elections for Federal office.
``(E) Prohibiting fees.--The head of a Federal
department or agency may not charge a fee for
responding to a State's request under paragraph (A).
``(k) Removal of Noncitizens From Registration Rolls.--A State shall
remove an individual who is not a citizen of the United States from the
official list of eligible voters for elections for Federal office held
in the State at any time upon receipt of documentation or verified
information that a registrant is not a United States citizen.''.
(g) Clarification of Authority of State to Remove Noncitizens From
Official List of Eligible Voters.--
(1) In general.--Section 8(a)(4) of the National Voter
Registration Act of 1993 (52 U.S.C. 20507(a)(4)) is amended--
(A) by striking ``or'' at the end of subparagraph
(A);
(B) by adding ``or'' at the end of subparagraph (B);
and
(C) by adding at the end the following new
subparagraph:
``(C) documentary proof or verified information that
the registrant is not a United States citizen;''.
(2) Conforming amendment.--Section 8(c)(2)(B)(i) of such Act
(52 U.S.C. 20507(c)(2)(B)(i)) is amended by striking ``(4)(A)''
and inserting ``(4)(A) or (C)''.
(h) Requirements With Respect to Federal Mail Voter Registration
Form.--
(1) Contents of mail voter registration form.--Section 9(b)
of such Act (52 U.S.C. 20508(b)) is amended--
(A) in paragraph (2)(A), by striking ``(including
citizenship)'' and inserting ``(including an
explanation of what is required to present documentary
proof of United States citizenship)'';
(B) in paragraph (3), by striking ``and'' at the end;
(C) in paragraph (4), by striking the period at the
end and inserting ``; and''; and
(D) by adding at the end the following new paragraph:
``(5) shall include a section, for use only by a State or
local election official, to record the type of document the
applicant presented as documentary proof of United States
citizenship, including the date of issuance, the date of
expiration (if any), the office which issued the document, and
any unique identification number associated with the
document.''.
(2) Information on mail voter registration form.--Section
9(b)(4) of such Act (52 U.S.C. 20508(b)(4)) is amended--
(A) by redesignating clauses (i) through (iii) as
subparagraphs (A) through (C), respectively; and
(B) in subparagraph (C) (as so redesignated and as
amended by paragraph (1)(C)), by striking ``; and'' and
inserting the following: ``, other than as evidence in
a criminal proceeding or immigration proceeding brought
against an applicant who attempts to register to vote
and makes a false declaration under penalty of perjury
that the applicant meets the eligibility requirements
to register to vote in an election for Federal office;
and''.
(i) Private Right of Action.--Section 11(b)(1) of the National Voter
Registration Act of 1993 (52 U.S.C. 20510(b)(1)) is amended by striking
``a violation of this Act'' and inserting ``a violation of this Act,
including the act of an election official who registers an applicant to
vote in an election for Federal office who fails to present documentary
proof of United States citizenship,''.
(j) Criminal Penalties.--Section 12(2) of such Act (52 U.S.C.
20511(2)) is amended--
(1) by striking ``or'' at the end of subparagraph (A);
(2) by redesignating subparagraph (B) as subparagraph (D);
and
(3) by inserting after subparagraph (A) the following new
subparagraphs:
``(B) in the case of an officer or employee of the
executive branch, providing material assistance to a
noncitizen in attempting to register to vote or vote in
an election for Federal office;
``(C) registering an applicant to vote in an election
for Federal office who fails to present documentary
proof of United States citizenship; or''.
(k) Applicability of Requirements to Certain States.--
(1) In general.--Subsection (c) of section 4 of the National
Voter Registration Act of 1993 (52 U.S.C. 20503), as
redesignated by subsection (b), is amended by striking ``This
Act does not apply to a State'' and inserting ``Except with
respect to the requirements under subsection (i) and (j) of
section 8 in the case of a State described in paragraph (2),
this Act does not apply to a State''.
(2) Permitting states to adopt requirements after
enactment.--Section 4 of such Act (52 U.S.C. 20503) is amended
by adding at the end the following new subsection:
``(d) Permitting States to Adopt Certain Requirements After
Enactment.--Subsections (i) and (j) of section 8 shall not apply to a
State described in subsection (c)(2) if the State, by law or
regulation, adopts requirements which are identical to the requirements
under such subsections not later than 60 days prior to the date of the
first election for Federal office which is held in the State after the
date of the enactment of the SAVE Act.''.
SEC. 3. ELECTION ASSISTANCE COMMISSION GUIDANCE.
Not later than 10 days after the date of the enactment of this Act,
the Election Assistance Commission shall adopt and transmit to the
chief State election official of each State guidance with respect to
the implementation of the requirements under the National Voter
Registration Act of 1993 (52 U.S.C. 20501 et seq.), as amended by
section 2.
SEC. 4. INAPPLICABILITY OF PAPERWORK REDUCTION ACT.
Subchapter I of chapter 35 of title 44 (commonly referred to as the
``Paperwork Reduction Act'') shall not apply with respect to the
development or modification of voter registration materials under the
National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.), as
amended by section 2, including the development or modification of any
voter registration application forms.
SEC. 5. DUTY OF SECRETARY OF HOMELAND SECURITY TO NOTIFY ELECTION
OFFICIALS OF NATURALIZATION.
Upon receiving information that an individual has become a
naturalized citizen of the United States, the Secretary of Homeland
Security shall promptly provide notice of such information to the
appropriate chief election official of the State in which such
individual is domiciled.
SEC. 6. RULE OF CONSTRUCTION REGARDING PROVISIONAL BALLOTS.
Nothing in this Act or in any amendment made by this Act may be
construed to supercede, restrict, or otherwise affect the ability of an
individual to cast a provisional ballot in an election for Federal
office or to have the ballot counted in the election if the individual
is verified as a citizen of the United States pursuant to section 8(j)
of the National Voter Registration Act of 1993 (as added by section
2(f)).
SEC. 7. RULE OF CONSTRUCTION REGARDING EFFECT ON STATE EXEMPTIONS FROM
OTHER FEDERAL LAWS.
Nothing in this Act or in any amendment made by this Act may be
construed to affect the exemption of a State from any requirement of
any Federal law other than the National Voter Registration Act of 1993
(52 U.S.C. 20501 et seq.).
SEC. 8. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on the
date of the enactment of this Act, and shall apply with respect to
applications for voter registration which are submitted on or after
such date.
Purpose and Summary
H.R. 8281, the Safeguard American Voter Eligibility Act
(``SAVE'' Act), introduced by Representative Chip Roy (TX-21)
with forty-six original co-sponsors, amends the National Voter
Registration Act (``NVRA'') to require individuals registering
to vote in a federal election, under any voter registration
method, to provide their State with documentary proof of U.S.
citizenship before the State can accept and process their voter
application. For applicants registering without documentary
proof of U.S. citizenship, State officials can cross-check the
applicant's information across federal and State databases and
determine within twenty-four hours whether the applicant is a
citizen. The SAVE Act also clarifies that States can remove
noncitizens from their voter rolls, requires States to
establish a program to remove noncitizens from their voter
rolls, and gives States no-cost access to several federal and
State databases to do so. It also expands the NVRA's existing
private right of action to empower citizens to bring civil
suits against State election officials that fail to uphold the
Act's proof of citizenship requirement and adds criminal
penalties for election officials, including executive branch
officials, that register noncitizens to vote in Federal
elections. Federal law makes it unlawful for noncitizens to
vote in federal elections but following the Supreme Court's
decision in Arizona v. Inter Tribal Council of Ariz., Inc.,\1\
States have been prevented from asking applicants registering
to vote for documentary proof of U.S. citizenship.
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\1\133 S.Ct. 2247 (2013).
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This has frustrated both the federal prohibition against
noncitizen voting as well as State prohibitions. Combined with
States refusing to clean their voter rolls under the NVRA and
the over 7 million illegal aliens that have come into the U.S.
under President Biden, Americans do not have confidence that
federal elections are free from foreign interference. The SAVE
Act requires States to ensure that only U.S. citizens are
voting in federal elections.
Background and Need for Legislation
BACKGROUND
Article I, Section 4 of the United States Constitution\2\
(``the Elections Clause'') explains that the States have the
primary authority over election administration, the ``times,
places, and manner of holding elections''[.] State authority to
administer elections for federal office was not a power
reserved by the States, but was instead expressly delegated to
them under the Constitution.\3\ The Elections Clause also
grants Congress a purely secondary role\4\ to alter or create
election laws, and regulate how federal elections are held.\5\
As do other aspects of our federal system, this division of
sovereignty continues to serve to protect one of Americans'
citizens most precious freedoms, the right to vote.
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\2\U.S. Const. art. I, Sec. 4, cl. 1 (``[t]he 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 . . .'').
\3\U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804 (1995).
\4\Although the text of the Elections Clause, read literally and
without the benefit of context, might suggest Congress has unlimited
authority in this space, an examination of an examination of history,
precedent, the Framers' words, debates concerning ratification, the
Supreme Court, and the Constitution itself provide that this is not the
case. See Report: The Elections Clause: States' Primary Constitutional
Authority Over Elections, Comm. on H. Admin. (Republicans) (Aug. 12,
2021), https://republicanscha.house.gov/sites/
republicans.cha.house.gov/files/doc uments/
Report_The%20Elections%20Clause_States%20Primary%20Constitutional%20Auth
ority %20over%20Elections%20%28Aug%2011%2021%29.pdf.
\5\Arizona v. Inter Tribal Council of Ariz., Inc, 133 S.Ct. 2247,
2257 (2013).
---------------------------------------------------------------------------
The federal Constitution contains several voting rights
amendments, all of which only protect ``the right of citizens
of the United States'' in the voting process.\6\ To enforce
those rights, federal law makes it unlawful for noncitizens to
vote in federal elections.\7\ Similarly, federal law prohibits
foreign nationals\8\ from contributing or donating in
connection with a federal, state, or local election,\9\ making
a contribution or donation to a committee of a political
party,\10\ or making an expenditure (including an independent
expenditure) or disbursement for an electioneering
communication.\11\ Although the Supreme Court of the United
States has never been presented with the question whether the
foreign national prohibition violates the First Amendment, it
has previously affirmed a three-judge court's decision,
authored by then-Judge Kavanaugh, which upheld the foreign
national prohibition with respect to foreign nationals who
wanted to make contributions to federal and State
candidates.\12\
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\6\See U.S. Const. Amend. XV, Sec. 1 ``The right of citizens of the
United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition
of servitude.''; U.S. Const. Amend. XIX, Sec. 1 ``The right of citizens
of the United States to vote shall not be denied or abridged by the
United States or by any State on account of sex.''; U.S. Const. Amend.
XXIV, Sec. 1 ``The right of citizens of the United States to vote in
any primary or other election for President or Vice President, for
electors for President or Vice President, or for Senator or
Representative in Congress, 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.''; U.S. Const. Amend. XXVI, Sec. 1 ``The right of citizens
of the United States, who are eighteen years of age or older, to vote
shall not be denied or abridged by the United States or by any State on
account of age.''
\7\See 18 U.S.C. Sec. 611. Each of the voting rights amendments
listed in the previous footnote provide the authority for Congress to
enforce the amendment by appropriate legislation. In South Carolina v.
Katzenbach, the Supreme Court held that Congress has the power to act
under this authority as it would any of its powers under Article I,
Section 8 as articulated in McCulloch v. Maryland. See South Carolina
v. Katzenbach, 383, U.S. 301, 326-27 (1966). Allowing non-citizens to
cast ballots in American elections weakens our electoral system,
directly and indirectly impacts Federal policy and funding decisions
and candidate choice through the election of State and local officials,
dilutes the value of citizenship, and sows distrust in our elections
system; even if a State has the sovereign authority, no State should
permit noncitizens to cast ballots in State or local elections. See
U.S. Const. Amend. XIV; U.S. Const. Amend. XV; U.S. Const. Amend. XIX;
U.S. Const. Amend. XXIV; U.S. Const. Amend. XXVI.
\8\Federal law defines foreign national as an individual who is not
a citizen of the United States and not lawfully admitted for permanent
residence under 8 U.S.C. Sec. 1101(a)(20) or a foreign principal, as
defined in 22 U.S.C. Sec. 611(b).
\9\52 U.S.C. Sec. 30121(a)(1)(A).
\10\Id. at Sec. 30121(a)(1)(B).
\11\Id. at Sec. 30121(a)(1)(C). Federal law defines an
electioneering communication as ``any broadcast, cable, or satellite
communication which--refers to a clearly identified candidate for
Federal office; is made within--60 days before a general, special, or
runoff election for the office sought by the candidate; or 30 days
before a primary or preference election, or a convention or caucus of a
political party that has authority to nominate a candidate, for the
office sought by the candidate; and in the case of a communication
which refers to a candidate for an office other than President or Vice
President, is targeted to the relevant electorate.'' Id. at
Sec. 30104(f)(3).
\12\See Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011),
aff'd, 565 U.S. 1104 (2012). Importantly, the three-judge decision did
not rely on Congress' power under the Elections Clause of Article I,
Section 4 to justify the foreign national spending prohibition. Cf.
Report: The Elections Clause: States' Primary Constitutional Authority
Over Elections, Comm. on H. Admin. (Republicans) (Aug. 12, 2021),
https://republicanscha.house.gov/sites/republicans.cha.house.gov/files/
documents/
Report_The%20Elections%20Clause_States%20Primary%20Constitutional%20Au
thority%20over%20Elections%20%28Aug%2011%2021%29.pdf.
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Every State has used its constitutional authority to
establish voter qualifications, often consisting of age,
residency, and citizenship requirements.\13\ Several States
have enshrined U.S. citizenship in their State constitution as
a qualification for voters to vote in State elections.\14\ To
enforce both the federal and State constitutional and statutory
prohibitions on noncitizen voting, several States have enacted
documentary proof of citizenship requirements when applicants
register to vote.\15\ But as explained below, following the
Supreme Court's interpretation of the National Voter
Registration Act (``NVRA'') in Arizona v. Inter Tribal Council
of Ariz., Inc (``ITCA'') as well as other lower court
decisions, States have been relegated to enforcing the federal
and State prohibitions on noncitizen voting by requiring
applicants to sign, under penalty of perjury, that they are a
citizen without being able to ask for documentary proof.
---------------------------------------------------------------------------
\13\See Kramer v. Union Free School District 395 U.S. 621, 625
(1969) (`` . . . States have the power to impose reasonable
citizenship, age, and residency requirements on the availability of the
ballot.''); See also Carrington v. Rash, 380 U.S. 89, 91 (1965)
(``There can be no doubt either of the historic function of the States
to establish, on a nondiscriminatory basis, and in accordance with the
Constitution, other qualifications for the exercise of the
franchise.'')
\14\See Laws permitting noncitizens to vote in the United States,
Ballotpedia, available at https://ballotpedia.org/
Laws_permitting_noncitizens_to_vote_in_the_United_States.
\15\See, e.g. A.R.S. Sec. 16-121.01; MS Code Sec. 23-15-15; K.S.A.
25-2309.
---------------------------------------------------------------------------
The NVRA was signed into law by President Bill Clinton in
1993 ``to establish procedures that will increase the number of
eligible citizens who register to vote in elections for Federal
office; . . . protect the integrity of the electoral process;
and . . . ensure that accurate and current voter registration
rolls are maintained.''\16\ In conjunction with the
Constitution's voting rights amendments, Congress also found
that ``the right of citizens of the United States to vote is a
fundamental right''[.]\17\ The legislation is commonly referred
to as the ``motor voter'' law because it requires States to
provide individuals with voter registration materials when they
apply for a driver's license.\18\ However, effective August 1,
1994, the NVRA exempted States from its requirements that they
either had no voter-registration requirements or had election-
day voter registration at polling places with respect to
elections for federal office.\19\
---------------------------------------------------------------------------
\16\52 U.S.C. Sec. 20501(b).
\17\Id. at Sec. 20501(a).
\18\Id. at Sec. 20503(a).
\19\Id. Sec. 20503(b). Those States are Idaho, Minnesota,
New Hampshire, North Dakota, Wisconsin, and Wyoming. Of these, North
Dakota is the only one that does not have voter registration.
---------------------------------------------------------------------------
THE NVRA AND NONCITIZENS
Although almost no States allow noncitizens to vote in
their elections, over 20 States do allow noncitizens to apply
for driver's licenses.\20\ Unfortunately, because of human
error in the process at the counter or in the computer system,
noncitizens will be given voter registration forms and might
unlawfully register to vote in at least some of these
situations. This is not a hypothetical as Pennsylvania admitted
that just a few years ago it had inadvertently allowed over
10,000 noncitizens to register to vote via this process,\21\
and Texas has had similar problems with nearly 100,000
registrations.\22\ And now that Pennsylvania and other States
have implemented automatic voter registration when an applicant
obtains a new or renewed driver license or identification card
unless the applicant affirmatively opts-out, there is a strong
possibility that at least some noncitizens will continue to end
up on the voter rolls.\23\ When Illinois implemented automatic
voter registration several years ago, hundreds of noncitizens
ended up on the voter rolls.\24\ More recently, Ohio announced
it was removing upwards of 100 noncitizens from their
rolls\25\, a Georgia audit found more than 1,600 noncitizens
had attempted to register to vote\26\, and Virginia recently
removed almost 1,500 noncitizens from its rolls.\27\
Remarkably, the Public Legal Interest Legal Foundation has
found that in California, Florida, Texas, Virginia,
Pennsylvania, and New Jersey, noncitizens that admitted they
were not U.S. citizens were still incorrectly registered to
vote.\28\
---------------------------------------------------------------------------
\20\See States Offering Driver's Licenses to Immigrants, National
Conference of State Legislatures (Mar. 13, 2023), https://www.ncsl.org/
immigration/states-offering-drivers-licenses-to-immi grants.
\21\Rowan Scarborough, Stephen Dinan, Pennsylvania admits to 11,000
noncitizens registered to vote, Washington Times (Jan. 30, 2019),
https://www.washingtontimes.com/news/2019/jan/30/pennsylvania-11000-
non-citizens-registered-vote/.; Pam Fessler, Some Noncitizens Do Wind
Up Registered To Vote, But Usually Not On Purpose, National Public
Radio (Feb. 26, 2019), https://www.npr.org/2019/02/26/697848417/some-
noncitizens-do-wind-up-registered-to-vote-but-usually-not-on-purpose.
\22\Alexa Ura, Texas' renewed voter citizenship review is still
flagging citizens as ``possible non-U.S. citizens'', The Texas Tribune
(Dec. 17, 2021), https://www.texastribune.org/2021/12/17/texas-voter-
roll-review/.
\23\Governor Shapiro Implements Automatic Voter Registration in
Pennsylvania, Joining Bipartisan Group of States That Have Taken
Commonsense Step to Make Voter Registration More Streamlined and
Secure, Governor Josh Shapiro (Sept. 19, 2023), https://
www.governor.pa.gov/newsroom/governor-shapiro-implements-automatic-
voter-registration-in-pennsylvania-joining-bip artisan-group-of-states-
that-have-taken-commonsense-step-to-make-voter-registration-more-stre
amlined-and-secure/.
\24\Mike Lowe, Hundreds of non-citizens registered to vote in
Illinois due to technical glitch, WGN9 (Jan. 21, 2020), https://
wgntv.com/news/hundreds-of-non-citizens-registered-to-vote-in-ill
inois-due-to-technical-glitch/.
\25\Anders Hagstrom, Ohio purges `non-citizens' from state voter
rolls, calls on Biden admin for data ahead of 2024 election, Fox News
(May 14, 2024), https://www.foxnews.com/politics/ohio-purges-non-
citizens-state-voter-rolls-calls-biden-admin-data-ahead-2024-election.
\26\Ga. elections chief finds 1,634 noncitizen voting attempts,
1226 (April 11, 2022), https://www.wrdw.com/2022/04/11/watch-live-ga-
elections-news-conference/.
\27\VA Records Show Non-citizens Voting, EPEC News, available at
https://epec.info/2024/03/22/va-records-show-non-citizens-voting/.
\28\Testimony of J. Christian Adams, Before the U.S. House of
Representatives Committee on House Administration (May 16, 2024),
https://docs.house.gov/meetings/HA/HA00/20240516/117312/HHRG-118-HA00-
Wstate-AdamsJ-20240516.pdf.
---------------------------------------------------------------------------
In addition to driver's licenses, noncitizens are eligible
for a variety of federal and State benefit programs. On the
federal level, such programs include the Supplemental Nutrition
Assistance Program, the Supplemental Security Income Program,
Temporary Assistance for Needy Families, and Medicaid, among
others.\29\ At the State level, such programs include New
York's Safety Net Assistance, California's CalFresh Food
Assistance Program, and California's Cash Assistance Program
for Immigrants, among others.\30\ As with driver's licenses,
when noncitizens apply for and receive government benefits,
there is a possibility their names end up on the voter rolls.
---------------------------------------------------------------------------
\29\Abigail F. Kolker, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview, CRS Report RL33809, https://
crsreports.congress.gov/product/pdf/RL/RL33809.
\30\Fact Sheet: Immigrants and Public Benefits, National
Immigration Forum, https://immigrationforum.org/wp-content/uploads/
2018/08/Immigrants-and-Public-Benefits-FINALupdat ed.pdf.
---------------------------------------------------------------------------
Unfortunately, the risk of unlawful noncitizen voting in
federal and State elections is not a myth. In the 1996 federal
midterm election for California's 46th District, the House
committee charged with investigating the race found ```clear
and convincing' evidence that 624 aliens had voted illegally in
the Dornan-Sanchez election and circumstantial evidence that
another 196 aliens also had done so.''\31\ In 2011, Fairfax
County, Virginia, discovered over 278 noncitizens on the voter
roll and learned that 117 of them had illegally voted in
Virginia elections.\32\ Over the past decade, several different
Arizona counties reported finding hundreds noncitizens on the
voter rolls and determined some of them illegally voted in
federal elections.\33\ Other jurisdictions like Chicago,
Illinois, San Diego County, California, and Alleghany County,
Pennsylvania have all dealt with similar problems and learned
that noncitizens had illegally voted.\34\
---------------------------------------------------------------------------
\31\Hans von Spakovsky, J. Christian Adams, Despite Liberals'
Hysterical Denials, Aliens Are Registering and Voting, The Daily Signal
(June 6, 2024), https://www.dailysignal.com/2024/06/06/despite-
liberals-hysterical-denial-aliens-are-registering-and-voting/.
\32\Id.
\33\Id.
\34\Id.
---------------------------------------------------------------------------
Today, it is more likely than ever before that noncitizens
that apply for and receive federal benefits could end up on a
State's voter rolls. On March 7, 2021, President Joe Biden
signed an executive order, ``Executive Order on Promoting
Access to Voting''\35\ (``President Biden's order'') that turns
every federal agency into a voter registration agency\36\ under
the NVRA. Under President Biden's order, federal agencies are
required to ``consider ways to expand citizens'' opportunities
to register to vote and to obtain information about, and
participate in, the electoral process.''\37\ As such, the head
of each federal agency is required to evaluate how the agency
can promote voter registration and voter participation,
including, but not limited to, providing voting information in
the course of activities or services that directly engage with
the public through agency materials, websites, online forms,
social media platforms, and providing links on agency websites
to State online voter registration systems. In addition, the
agency head should attempt to provide access to voter
registration services and vote-by-mail ballot applications in
the course of activities or services that directly engage with
the public, including assisting applicants in completing voter
registration and vote-by-mail ballot applications, and
soliciting and facilitating nonpartisan third-party
organizations and State officials to provide voter registration
services on agency premises. As a result, noncitizens are more
likely than ever to encounter voter registration materials when
they engage with a federal agency\38\, as recently confirmed by
the Alabama Secretary of State Wes Allen.\39\
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\35\Exec. Order No. 14019, 86 Fed. Reg 19569 (Mar. 7, 2021).
\36\52 U.S.C. Sec. 20502(5).
\37\Exec. Order No. 14019, 86 Fed. Reg 19569 (Mar. 7, 2021).
\38\On November 30, 2023, the Committee on House Administration met
in open session and passed H.R. 6493, the Safeguarding Electoral
Integrity Act of 2023. The legislation, as amended, repeals President
Biden's Executive Order on Promoting Access to Voting, and requires
plans made under it to be submitted to various congressional
committees.
\39\Wes Allen Exposes Federal Government Policy of Providing Voter
Registration Forms to Non-Citizens, Alabama Secretary of State (June 5,
2024), https://www.sos.alabama.gov/news room/wes-allen-exposes-federal-
government-policy-providing-voter-registration-forms-non.
---------------------------------------------------------------------------
The NVRA allows States to remove registered individuals
from its voter rolls if the registrant requests it, if State
law prohibits those individuals from exercising the franchise
by reason of criminal conviction or mental incapacity, or if
the State carries out a general program to remove voters that
have died or moved.\40\ With the exceptions provided for in the
preceding sentence, a State, within 90 days prior of a primary
or general election for federal office cannot undertake a
program with the purpose of systematically removing ineligible
voters from its voter rolls.\41\ In addition, the NVRA also
imposes strict guidelines the State must follow in carrying out
a program to remove voters that have moved.\42\
---------------------------------------------------------------------------
\40\52 U.S.C. Sec. Sec. 20507(a)(3)-(4).
\41\Id. at Sec. 20507(c)(2)(A).
\42\Id. at Sec. 20507(b)-(e).
---------------------------------------------------------------------------
While the NVRA is premised squarely on the concept of only
American citizens voting in federal elections,\43\ it does not
expressly provide States with the authority to remove
noncitizens from voter rolls. The NVRA's silence on this
question only makes matters worse when combined with its
convoluted provisions concerning the timing of a State's
removal of ineligible registrants from its voter rolls. In
2012, the Florida Secretary of State removed identified
noncitizens from the state's voter rolls within the 90-day
period before the primary and general election.\44\ When this
program was challenged as occurring unlawfully within the
NVRA's restricted 90-day timeframe, the district court held
that noncitizen removal was exempt from the NVRA's restrictions
because those only applied to registrants who were lawfully
registered to vote in the first instance.\45\ But the United
States Court of Appeals for the Eleventh Circuit reversed the
district court, holding that the 90-day timeframe applies to
any systematic removal program except for those that execute
removal upon request by or death of the registrant, or as
provided by State law by reason of criminal conviction or
mental incapacity.\46\
---------------------------------------------------------------------------
\43\See Id. at Sec. Sec. 20501(a)-(b) (explaining that in the NVRA,
Congress found the right of citizens to vote in the United States was a
fundamental right, and two purposes of the NVRA are to increase the
number of eligible citizens who register to vote and enhance their
participation in elections for Federal office.)
\44\Arcia v. Florida Secretary of State, 772 F. 3d 1335, 1339-40
(11th Cir. 2014).
\45\Arcia v. Detzner, 908 F. Supp. 2d 1276, 1282-83 (S.D. FL.
2012).
\46\Arcia, 772 F. 3d at 1345. While the NVRA does not define what a
``systematic'' plan is, the court found Florida's plan to be systematic
because it ``did not rely upon individualized information or
investigation to determine which names from the voter registry to
remove. Rather, the Secretary used a mass computerized data-matching
process to compare the voter rolls with other state and federal
databases, followed by the mailing of notices.'' Id. at 1344.
---------------------------------------------------------------------------
LIMITED ACCESS TO FEDERAL DATABASES
Congress created the U.S. Department of Homeland Security
(DHS) in response to the terrorist attacks on September 11,
2001, and DHS is the leading federal agency on matters of
immigration.\47\ DHS houses the Systematic Alien Verification
for Entitlements (SAVE) Program, which is ``designed to help
federal, state, tribal, and local government agencies confirm
citizenship and immigration status prior to granting benefits
and licenses, as well as for other lawful purposes.''\48\ The
SAVE program allows DHS to verify an the immigration status or
naturalized or derived citizenship status for any individual
listed in its database of processed names. The SAVE program is
currently utilized for ``Social Security benefits, unemployment
benefits, education assistance, housing assistance, public
health care, Supplemental Nutrition Assistance Program (SNAP)
benefits, Temporary Assistance for Needy Families, Medicaid,
Children's Health Insurance Program (CHIP), conducting
background investigations, armed forces recruitment, REAL ID
compliance, and other purposes authorized by law.''\49\ SAVE
only provides the requesting agency the information is has
regarding the applicant; it does not determine the applicant's
eligibility for a specific benefit.\50\ While the SAVE program
is a potent tool, it cannot verify an applicant's status using
only a first and last name\51\ but instead requires an
individual's first name, last name, date of birth, and a
numeric identifier from a U.S. government issued immigration
document (e.g., Alien/USCIS Number; Form I-94 etc.) in order to
conduct a successful query.\52\
---------------------------------------------------------------------------
\47\Homeland Security Act of 2002, P. Law. 107-296, 116 STAT 2135.
\48\DHS/USCIS/PIA-006 Systematic Alien Verification for
Entitlements (SAVE) Program, U.S. Department of Homeland Security,
available at https://www.dhs.gov/publication/systematic-alien-
verification-entitlements-save-program.
\49\Privacy Impact Assessment for the Systematic Alien Verification
for Entitlements Program, U.S. Department of Homeland Security (June
30, 2020), https://www.dhs.gov/sites/default/files/publications/
privacy-pia-uscis006c-save-july2020.pdf.
\50\Id.
\51\Id.
\52\U.S. Citizen and Immigration Services, SAVE Verification
Process, (Dec. 19, 2023), https://www.uscis.gov/save/about-save/save-
verification-process#:text=For%20SAVE%20to%20verify%2
0a,Departure%20Record%2C%20number%3B%20Student%20and.https://
www.uscis.gov/save/abo ut-save/save-verification-process.
---------------------------------------------------------------------------
In June of 2012, Florida sued DHS seeking access to the
SAVE database to determine whether noncitizens were registered
to vote in Florida.\53\ Following a settlement, DHS agreed to
process requests from several States including Florida, Iowa,
North Carolina, and others when they request the citizenship
information of applicants registering to vote or of registrants
already on the rolls.\54\
---------------------------------------------------------------------------
\53\Florida Department of State Receives Commitment from U.S.
Department of Homeland Security to Provide Access to Citizenship
Database, Florida Department of State (July 14, 2012), https://
dos.fl.gov/communications/press-releases/2012/florida-department-of-
state-receives-commit ment-from-us-department-of-homeland-security-to-
provide-access-to-citizenship-database/.
\54\Id. See also Muzaffar Chishti, Faye Hipsman, State Access to
Federal Immigration Data Stirs New Controversy in Debate over Voting
Rights, Migration Policy Institute (Sept. 12, 2013), https://
www.migrationpolicy.org/article/state-access-federal-immigration-data-
stirs-new-controver sy-debate-over-voting-rights.
---------------------------------------------------------------------------
As recently as March of 2022, Georgia used the SAVE
database to determine that almost 1,700 applicants that were
originally placed into the ``pending citizenship'' status in
its voter registration database were noncitizens.\55\ However,
DHS does not appear to be granting the same access to the SAVE
program to every other State. Some States report long
processing delays or apparently ``slow-walking'' of
requests.\56\ Further, the fees charged to States by DHS for
use of the SAVE database have limited its use.\57\
---------------------------------------------------------------------------
\55\Citizenship Audit Finds 1,634 Noncitizens Attempted to Register
to Vote, Georgia Secretary of State Brad Raffensperger (Mar. 28, 2022),
https://sos.ga.gov/news/citizenship-audit-finds-1634-noncitizens-
attempted-register-vote.
\56\This information was provided by Texas to Committee on House
Administration staff during oversight travel in March of 2022. See also
Committee on House Administration's Faith in Elections Project.
\57\Several States have complained to staff on the Committee on
House Administration during oversight travel regarding the fees imposed
by the Department of Homeland Security when a State requests it use its
SAVE database to help with voter verification efforts.
---------------------------------------------------------------------------
Like DHS, the U.S. Social Security Administration (SSA)
also maintains information regarding the citizenship status of
individuals applying for Social Security numbers or other
benefits that can help States confirm the citizenship status of
applicants registering to vote or individuals already on the
voter rolls. In the United States, having a lawfully issued
Social Security number does not confer citizenship status.
Rather, some noncitizens will have a Social Security number
because they are lawfully authorized to work in the United
States or have been admitted for permanent residence\58\, but
because they are not citizens, they are not permitted vote or
register to vote in federal elections and in almost every State
for state elections. However, federal law is particularly
strict on when the SSA is allowed to provide citizenship
information to requesting agencies, and confirming the
citizenship status of an applicant or registered voter is not a
lawful disclosure.\59\ As such, SSA is not currently able to
provide this information, even upon request.
---------------------------------------------------------------------------
\58\Abigail F. Kolker, William R. Morton, Noncitizen Eligibility
for Employment Authorization and Work-Authorized Social Security
Numbers, Congressional Research Service (Mar. 22, 2023), https://
crsreports.congress.gov/product/pdf/R/R47483.
\59\Disclosure of Social Security Numbers, Office of Privacy and
Civil Liberties U.S. Department of Justice (Oct. 11, 2022), https://
www.justice.gov/opcl/overview-privacy-act-1974-2020-edi tion/ssn.
https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/
ssnhttps://www.justi ce.gov/opcl/overview-privacy-act-1974-2020-
edition/ssn. The Committee on House Administration believes federal law
should be amended to require the Social Security Administration to
share its Death Masterfile to help States determine whether voters on
their rolls are still living.
---------------------------------------------------------------------------
In 1996, Congress enacted legislation that prohibited
noncitizens from voting in federal elections.\60\ Since that
time, a number of local jurisdictions have permitted
noncitizens to vote in their elections.\61\ Among others, the
list includes eleven jurisdictions in Maryland, three
jurisdictions in Vermont, at least one jurisdiction in
California, New York City, and the District of Columbia.\62\
While successful court challenges have hobbled some efforts
like in San Francisco and New York City,\63\ other challenges
have failed.\64\ For example, the Vermont Supreme Court held
that the Vermont Constitution does not prohibit cities from
allowing noncitizens to vote in local elections.\65\ And after
the District of Columbia allowed noncitizens to vote in its
elections, Congress, at the time of printing, has failed to
override the law in the requisite time to prevent it from going
into effect.\66\ In May of 2024, the House of Representatives
passed additional legislation to require U.S. citizenship for
voters in local elections in the District of Columbia that will
likely not be considered in the Senate.\67\
---------------------------------------------------------------------------
\60\18 U.S.C. Sec. 611; See also Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. 104-208, Section 217.
\61\Ballotpedia, supra note 14.
\62\Id. Recently, the San Francisco's Board of Supervisors
unanimously voted to appoint a noncitizen to San Franisco's Election
Commission despite the fact she cannot vote in federal or statewide
California races. See Gabriel Hays, Immigrant from Hong Kong becomes
first non-US citizen appointed to San Francisco Election Commission,
(Feb. 16, 2024), https://www.foxnews .com/media/immigrant-hong-kong-
becomes-first-non-us-citizen-appointed-san-francisco-election-
commission.
\63\In mid-February 2024, the Appellate Division for the Second
Judicial Department in New York affirmed a lower court's ruling that
New York City's noncitizen voting law violated the New York
Constitution as the state constitution protects the right of citizens
of the United States to vote, not citizens of New York. See Fossella v.
Adams, __ AD3d __, 2024 NY Slip Op 00891 (2nd Dept 2024).
\64\Ballotpedia, supra note 14.
\65\Ferry, et al. v. City of Montpelier, 2023 VT 4.
\66\Under the District of Columbia Home Rule Act, Congress had 30
days to override the Local Resident Voting Rights Amendment Act of 2022
that allowed noncitizens to vote if they are 18 years of age and have
resided in the District for 30 days. The U.S. House of Representatives
passed a disapproval resolution on February 9, 2023. See H.J. Res. 24,
Disapproving the action of the District of Columbia Council in
approving the Local Resident Voting Rights Amendment Act of 2022, 118th
Cong. Sec. 1 (2023). However, the U.S. Senate has not acted on the
disapproval resolution.
\67\See Roll Call 232, available at https://clerk.house.gov/Votes/
2024232.
---------------------------------------------------------------------------
THE NVRA, THE FEDERAL FORM, AND DOCUMENTARY PROOF OF U.S.
CITIZENSHIP LAWS
The NVRA requires a State's voter registration form to
include only the minimum amount necessary to prevent duplicate
voter registrations and enable State election officials to
assess the eligibility of the applicant and administer voter
registration.\68\ In conjunction with the above, the NVRA can
also be interpreted to limit the ability of the States to
enforce their voter eligibility requirements, such as U.S.
citizenship. This is because the NVRA requires a State's voter
registration materials to include an attestation that the
applicant meets each [voter eligibility] requirement; and
requires the signature of the applicant, under penalty of
perjury.''\69\ This requirement, when interpreted in light of
the NVRA's minimum amount necessary language, has been read by
federal courts prohibit State's from requiring applicants to
produce documentary proof of U.S. citizenship.\70\
---------------------------------------------------------------------------
\68\Id. at Sec. 20504(c)(2)(B).
\69\Id. at Sec. 20504(c)(2)(C).
\70\See Fish v. Kobach, 840 F. 3d 710 (10th Cir. 2016) (holding
that Kansas's U.S. documentary proof of citizenship requirement was
preempted by the NVRA's ``minimum amount of information necessary''
provision and therefore unenforceable).
---------------------------------------------------------------------------
One way the NVRA increased the number of eligible citizens
who register to vote in elections for Federal office was the
creation of the national mail voter registration application
form (``federal form'').\71\ The NVRA requires each State to
``accept and use'' the federal form for applicants that
register to vote in elections for federal office.\72\ When
applicants register on the federal form, they must follow the
State specific instructions for the State where they are
applying to register to vote. But in order to be placed on the
federal form, those instructions must first be accepted by the
U.S. Election Assistance Commission (``EAC''). When some States
requested that the EAC include their documentary proof of
citizenship requirement as part of their state-specific
instructions, the EAC refused, and the litigation described
below ensued. Today, the federal form only requires applicants
to swear or affirm under penalty of perjury that they are a
U.S. citizen.\73\
---------------------------------------------------------------------------
\71\52 U.S.C. Sec. 20505.
\72\Id. at Sec. 20505(a). With the codification of the Help America
Vote Act of 2002, the federal form went from being housed with the
Federal Election Commission to the Election Assistance Commission. See
Id. at Sec. 20508.
\73\National Mail Voter Registration Form, U.S. Election Assistance
Commission (Dec. 29, 2023), https://www.eac.gov/voters/national-mail-
voter-registration-form; see also 52 U.S.C. Sec. 20508(b)(2).
---------------------------------------------------------------------------
In 2004, Arizona voters adopted Proposition 200 that
required voters to present proof of citizenship when they
register to vote.\74\ To prove their U.S. citizenship,
applicants could present a photocopy of their passport or birth
certificate, a driver's license number, if the license states
that the issuing authority verified the applicant's U.S.
citizenship, evidence of naturalization, tribal identification,
or other methods pursuant to the Immigration Reform and Control
Act of 1986.\75\ But the EAC refused to include Arizona's
documentary proof of citizenship requirement on the State
specific instructions Arizona asked for on the federal
form.\76\ In response, Arizona enacted a statute that required
State officials to reject an applicant's federal form without
documentary proof of citizenship.\77\
---------------------------------------------------------------------------
\74\Inter Tribal Council, 133 S.Ct. 2252 (2013).
\75\Id.
\76\Id.
\77\Id. at 2254.
---------------------------------------------------------------------------
In ITCA, the Supreme Court (``Court'') held that the NVRA's
command that States ``accept and use'' the federal form
preempted Arizona's requirement that State officials reject an
applicant's federal form without documentary proof of
citizenship.\78\ By interpreting solely the plain statutory
text of the NVRA without reaching the constitutional question,
the Court declined to determine to whether the NVRA's ``accept
and use'' requirement was constitutional if it prevented a
State from enforcing its constitutionally sound voter
qualifications. As a result, Arizona, and every other State
with a documentary proof of citizenship requirement have been
required to accept the registration of applicants that used the
federal form and allow them to vote in federal elections, any
state law to the contrary notwithstanding.
---------------------------------------------------------------------------
\78\Id. at 2260.
---------------------------------------------------------------------------
The Court rejected Arizona's textual argument that the NVRA
did not prohibit States from asking applicants for additional
information before registering them to vote. It reasoned that
while the NVRA requires States to accept a completed federal
form, States remain constitutionally competent to create their
own voter registration forms for state elections, including
those that may require information not contemplated by the
federal form, and that the federal form's purpose was to serve
as a backstop to ensure one method of registering to vote in
federal elections was always available.\79\ As such, the Court
determined that the plain meaning of the NVRA's text required
States to register to vote for federal elections all eligible
applicants who complete the federal form.
---------------------------------------------------------------------------
\79\Id. at 2254-56.
---------------------------------------------------------------------------
But the Court was concerned that the plain meaning of the
NVRA might prevent Arizona from getting the information it
needs to enforce its citizenship requirement. It recognized it
would raise constitutional concerns if a federal statute
prohibited States from getting the information they needed to
enforce their qualifications.\80\ In response to this problem,
the United States argued the NVRA could be read to require the
EAC to place State specific instructions if the information is
necessary for a State to assess the eligibility of an
applicant.\81\ The Court avoided the constitutional question by
invoking the constitutional avoidance canon\82\ and suggested
that Arizona ask the EAC again to place its documentary proof
of citizenship requirement on the federal form with the
alternative that if the EAC refused, Arizona could sue the EAC
for violating the Administrative Procedure Act (``APA'').\83\
---------------------------------------------------------------------------
\80\Inter Tribal Council, 133 S.Ct. at 2258-59.
\81\Id. at 2259. Because the EAC had already rejected Arizona's
request to have the documentary proof of citizenship requirement on the
federal form, this argument makes little sense.
\82\Under this canon of statutory interpretation, ``if a statute
has two possible meanings, one of which violates the Constitution,
courts should adopt the meaning that does not do so.'' Nat'l Fed'n of
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2593 (2012) (opinion of
Roberts, C.J.).
\83\Inter Tribal Council, 133 S.Ct. at 2259-60. Both dissents
pointed out that asking the EAC a second time made little sense,
especially in light of the fact that the EAC had no commissioners to
review and accept or deny a State's request at the time the opinion was
issued. See Id. at 2270 (Thomas, J., dissenting) and Id. at 2273
(Alito, J., dissenting).
---------------------------------------------------------------------------
Following the Supreme Court's decision in ITCA several
States requested the EAC include their documentary proof of
citizenship requirement on the federal form. But the EAC
rejected these requests, reasoning that providing documentary
proof of citizenship would require applicants to ``submit more
information that is necessary to enable election officials to
assess eligibility.''\84\ The EAC reasoned that the sworn
statement on the federal form is relied on by most
jurisdictions in the United States to enforce their citizenship
requirement, and there are hefty fines and penalties associated
with applicants that lie about their citizenship.\85\
---------------------------------------------------------------------------
\84\Memorandum of Decision Concerning State Requests To Include
Additional Proof-Of-Citizenship Instructions On The National Mail Voter
Registration Form at 28-30, U.S. Election Assistance Commission (Jan.
17, 2014), available at https://www.brennancenter.org/sites/default/
files/legal-work/129-1%20Memorandum%20of%20Decision.pdf. (emphasis
added).; see also Fish v. Kobach, 840 F. 3d 710 (10th Cir. 2016) (the
Tenth Circuit made the same arguments in finding that the NVRA
preempted Kansas's U.S. documentary proof of citizenship requirement).
\85\Id.
---------------------------------------------------------------------------
In response to the EAC's rejection of including a
documentary proof of citizenship requirement on the federal
form, Arizona and Kansas sued the EAC for violating the APA, as
the Supreme Court had suggested in ITCA.\86\ The District Court
held that the EAC acted unlawfully by not including the
documentary proof of citizenship requirement because the States
have the authority to determine how to enforce their voter
qualifications, imposing a nondiscretionary duty on the EAC to
update the form, and that the NVRA did not preempt State laws
requiring proof of citizenship.\87\ But the United States Court
of Appeals for the Tenth Circuit reversed, holding that the
EAC's duty was discretionary, and that the States must prove
that the federal form does not provide the information they
need to enforce its voter qualifications, which Arizona and
Kansas had not shown.\88\ When Arizona and Kansas appealed the
ruling to the Supreme Court, it chose not to hear the case.\89\
---------------------------------------------------------------------------
\86\Inter Tribal Council, 133 S.Ct. at 2259-60
\87\Kobach v. U.S. Election Assistance Com'n, 6 F. Supp. 3d, 1252,
1271-72 (D. Kansas 2014). The court ordered the EAC to include Arizona
and Kansas' documentary proof of citizenship requirement on the federal
form.
\88\Kobach v. U.S. Election Assistance Comm'n, 772 F. 3d 1183,1195-
96 (10th Cir. 2014).
\89\576 U.S. 1055 (2015).
---------------------------------------------------------------------------
In January of 2016, the EAC's new executive director
approved the requests of Georgia, Kansas, and Alabama to
include their documentary proof of citizenship requirement on
the federal form.\90\ But the United States Court of Appeals
for the D.C. Circuit found that decision to be unlawful because
the director accepted the States' request on the belief that it
was within the States' competence to determine what should be
on the form and no independent review was required.\91\ Like
the Tenth Circuit, the D.C. Circuit determined that the NVRA
required States to prove that the documentary proof of
citizenship requirement is necessary to enforce its voter
qualifications.\92\ The dissent argued that reading raised
serious constitutional questions because the federal government
cannot upend State authority to determine the eligibility of
its voters, and the cleanest interpretation of the NVRA should
impose a nondiscretionary duty on the EAC to grant the States'
request.\93\
---------------------------------------------------------------------------
\90\League of Women Voters of US v. Newby, 838 F. 3d 1, 6 (D.C.
Cir. 2016).
\91\Id. at 9-10.
\92\Id. at 10-11.
\93\Id. at 15-16 (Randolph, J., dissenting).
---------------------------------------------------------------------------
In 2022, Arizona enacted a new U.S. documentary proof of
citizenship law for applicants registering to vote in federal
elections. Since the Court's decision in ITCA, Arizona has
required those registering to vote in State or local elections
to comply with this requirement, but not federal elections. In
early March of 2024, a federal district court held that
Arizona's requirement did not violate the NVRA or impose an
undue burden on the right to vote.\94\
---------------------------------------------------------------------------
\94\Mi Familia Vota v. Fontes, No. CV-22-00509-PHX-SRB (D. A.Z.
Feb. 29, 2024).
---------------------------------------------------------------------------
THE BIDEN ADMINISTRATION'S REFUSAL TO ENFORCE THE
IMMIGRATION LAWS
Since President Biden assumed office on January 20, 2021,
he has, on more than 60 occasions, taken actions that have
``manipulated the federal bureaucracy to open our borders to
illegal immigrants, human trafficking, fentanyl, and potential
terrorists.''\95\ Among those actions were halting emergency
construction of a wall on the southern border, instating lax
deportation and immigration enforcement policies, terminating
the Migrant Protection Protocols (commonly known as Remain in
Mexico), reinstating catch-and-release, expanding asylum
eligibility, among many other actions.\96\ As a result of these
policies, as of February 2024, over 7 million illegal
immigrants had come across the southern border, a number
greater than the population of 36 States.\97\ This number does
not include the roughly 1.8 million known ``gotaways'' who
evaded law enforcement.\98\
---------------------------------------------------------------------------
\95\64 Times the Biden Administration Intentionally Undermined
Border Security, Speaker Mike Johnson (Jan. 9, 2024), https://
www.speaker.gov/64-times-the-biden-administration-inten tionally-
undermined-border-security/.
\96\Id.
\97\Chris Pandolfo, 7.2M illegals entered the US under Biden admin,
an amount greater than population of 36 states, Fox News (Feb. 20,
2024), https://www.foxnews.com/politics/illegal-immi grants-biden-
admin-amount-greater-population-36-states.
\98\Id.
---------------------------------------------------------------------------
Republicans across the U.S. have taken several actions to
stop the Biden Administration's lawlessness at the border.
First, Texas and several other States have sued the Biden
Administration, arguing that several of the policies stated
above violate the immigration laws. But in Biden v. Texas, the
Supreme Court held the Biden Administration's recission of the
Migrant Protection Protocols did not violate the Immigration
and Nationality Act.\99\ A year later, the Supreme Court held
that Texas and Louisiana did not have standing to challenge the
Biden Administration's lax deportation and immigration
enforcement policies.\100\
---------------------------------------------------------------------------
\99\597 U.S. 785 (2022).
\100\599 U.S. 670 (2023).
---------------------------------------------------------------------------
In the November 2022 federal midterm elections, Republicans
took back the House of Representatives (``House''), campaigning
in part on securing the southern border.\101\ In May of 2023,
the House of Representatives passed H.R. 2, the Secure the
Border Act of 2023.\102\ Among other things, the bill would
require completion of the wall on the southern border,
authorizes funds to hire more border patrol agents, prohibits
federal funds from being used to fund President Biden's parole
rule, criminalizes visa overstays, stops non-governmental
organizations from using tax dollars to transport illegal
aliens, requires employers to use E-Verify, and makes changes
to the asylum process. However, the bill has little to no
chance of being taken up or passed through the Democrat
controlled Senate. In addition, the Biden Administration issued
a Statement of Administration Policy providing that President
Biden would veto the legislation.\103\ Additionally, in
February of 2024, the House of Representatives impeached DHS
Secretary Alejandro Mayorkas for refusing to comply and enforce
the immigration laws, and for breaching the public trust by
making false statements and knowingly obstructing lawful
oversight of DHS.\104\ Both H.R. 2 and the impeachment of
Secretary Mayorkas passed the House with no Democrat
support.\105\ Unfortunately, the Democrat controlled Senate
voted on a party-line vote to dismiss both articles of
impeachment, without a trial.\106\
---------------------------------------------------------------------------
\101\Secure the Border and Combat Illegal Immigration, Leader Kevin
McCarthy's Commitment to America, available at https://www.speaker.gov/
commitment/safe-communities/; see also Suzanne Monyak, GOP candidates
focus on border security amid high migration, Roll Call (Nov. 2, 2022),
https://rollcall.com/2022/11/02/gop-candidates-focus-on-border-
security-amid-high-migra tion/.
\102\Secure the Border Act of 2023, H.R. 2, 118th Cong. Sec. 1
(2023).
\103\Statement of Administration Policy H.R. 2--Secure the Border
Act of 2023, Executive Office of the President (May 8, 2023), https://
www.whitehouse.gov/wp-content/uploads/2023/05/SAP-H.R.-2.pdf.
\104\Impeaching Alejandro Nicholas Mayorkas, Secretary of Homeland
Security, for high crimes and misdemeanors, H. Res. 863, 118th Cong.
Sec. 2 (2024).
\105\See Roll Call 209, available at https://clerk.house.gov/Votes/
2023209; See Roll Call 43, available at https://clerk.house.gov/Votes/
202443.
\106\Mary Clare Jalonick, Farnoush Amiri, Senate rejects
impeachment articles against Mayorkas, ending trial against Cabinet
secretary, Associated Press (April 17, 2024), https://ap news.com/
article/mayorkas-senate-impeachment-trial-democrats-
29aa775c0e866f4160f320583f26 1a72.
---------------------------------------------------------------------------
As the number of crossings at the U.S. southern border has
spiraled out of control, Speaker Mike Johnson has implored
President Biden to take executive action to secure the southern
border.\107\ Six months following Speaker Johnson's request in
which media reports suggested President Biden went back\108\
and forth\109\ on the issue, he finally announced new actions
to attempt to secure the border.\110\ Among other things, the
order, with some exceptions, would suspend and limit entries
into the U.S. if Customs and Border Patrol has made 2,500 or
more encounters per day over a seven-day period.\111\
Remarkably, encounters were last below 2,500 in January of 2021
when President Biden first took office and under the new order,
the border would remain open with 17,000 encounters in a week,
68,000 in a month, or over 800,000 in a year.\112\
---------------------------------------------------------------------------
\107\Speaker Johnson Sends Letter to President Biden Urging
Immediate Executive Action
on the Southern Border, Speaker Mike Johnson (Dec. 21, 2023), https://
www.speaker.gov/speak
er-johnson-sends-letter-to-president-biden-urging-immediate-executive-
action-on-the-southern-bo rder/.
\108\Julia Ainsley, Monica Alba, The Biden administration is
considering executive action to deter illegal migration at the southern
border, NBC News (Feb. 7, 2024), https://www.nbc news.com/politics/
immigration/biden-administration-weighs-executive-action-border-
migrants-rcn a137804.
\109\Louis Casiano, Biden says he won't take executive action to
secure border, wants Congress to find a fix, Fox News (Mar. 11, 2024),
https://www.foxnews.com/politics/biden-wont-take-execu tive-action-
secure-border-wants-congress-find-fix.
\110\FACT SHEET: President Biden Announces New Actions to Secure
the Border, The White House (June 4, 2024), https://www.whitehouse.gov/
briefing-room/statements-releases/2024/06/04/fact-sheet-president-
biden-announces-new-actions-to-secure-the-border/.
\111\Seung Min Kim et al., Biden rolls out asylum restrictions,
months in the making, to help `gain control' of the border, Associated
Press (June 5, 2024), https://apnews.com/article/biden-asy
lum-migration-immigration-mexico-border-
dec5f83b468b5795479bf1f5e49799d5.
\112\Id.
---------------------------------------------------------------------------
As a result, there is an explosion of illegal immigrants in
the U.S. that might be eligible for different federal and State
benefits with the chance that they are improperly placed on a
State's voter roll.
NEED FOR LEGISLATION
Representative Roy's (TX-22) Safeguard American Voter
Eligibility Act (``SAVE'' Act) would require individuals
registering to vote in a federal election, under any voter
registration method, to provide their State with documentary
proof of U.S. citizenship before the State can accept and
process their voter application. For applicants registering
without documentary proof of U.S. citizenship, State officials
can cross-check the applicant's information across federal and
State databases and determine whether the applicant is a
citizen within twenty-four hours. The SAVE Act also clarifies
that States can remove noncitizens from their voter rolls,
requires States to establish a program to remove noncitizens
from their voter rolls, and gives States no-cost access to
federal and State databases where citizenship information is
housed to do so. It also expands the NVRA's existing private
right of action to empower citizens to bring civil suits
against State election officials that fail to uphold the act's
proof of citizenship requirement and adds criminal penalties
for election officials that register noncitizens to vote in
Federal elections, including executive branch employees that
materially assist noncitizens registering to vote. Federal law
makes it unlawful for noncitizens to vote in federal elections
but following the Supreme Court's decision in ITCA,\113\ States
have been prevented from asking applicants registering to vote
for documentary proof of U.S. citizenship. This has frustrated
both the federal prohibition and State prohibitions on
noncitizen voting.
---------------------------------------------------------------------------
\113\133 S.Ct. 2247 (2013).
---------------------------------------------------------------------------
While the NVRA had an admirable goal of getting U.S.
citizens registered to vote, the real-world effects of it have
prevented States from requiring documentary proof of U.S.
citizenship of applicants registering to vote. The NVRA poses
other problems such as not allowing States to remove
noncitizens from their voter rolls,\114\ and not giving States
access to federal or State databases that can help them ensure
their voter rolls only consist of eligible voters. To make
matters worse, the NVRA requires States to provide voter
registration materials to anyone that applies for a driver's
license. But with so many States allowing noncitizens to
receive driver's licenses and other benefits, there is a
possibility that noncitizens mistakenly end up on the voter
rolls. And because the NVRA does not bifurcate between citizens
and noncitizens receiving voter registration materials, some
States do not take the time to check whether they have given a
voter registration application to a noncitizen. As a result of
all this, backward NVRA jurisprudence has prevented States from
ensuring that only U.S. citizens are registered to vote.
---------------------------------------------------------------------------
\114\But see Arcia v. Florida Secretary of State, 772 F. 3d 1335
(11th Cir. 2014) (holding that States can remove noncitizens from their
rolls even though the text of the NVRA does not allow it).
---------------------------------------------------------------------------
Since President Biden assumed office, there has been an
influx of illegal immigrants that have entered the U.S. by way
of our open southern border. These illegal immigrants, along
with many millions of existing noncitizens in the U.S. are
eligible for different federal and State benefits. Because the
NVRA ensures that anyone that signs up for a driver's license
receives voter registration forms, it is plausible that
noncitizens have inadvertently been given these forms and might
be registered to vote in several States. Moreover, under
President Biden's Executive Order on Promoting Access to
Voting, federal agencies are required to provide voter
registration materials to individuals they interact with. And
to make matters worse, as some jurisdictions have allowed
noncitizens to vote, those noncitizens are lawfully on the
voter rolls of several States. As a result of all this,
combined with States being unable to check for proof of U.S.
citizenship when they register voters, it is truly unknown how
many noncitizens are on the voter rolls and might have the
opportunity to vote in federal elections.
As described above, federal law, and many State laws
prohibit noncitizens from voting. However, following the
Supreme Court's decision in ITCA and the decisions of other
federal courts, States have been prohibited from requiring
applicants registering to vote to provide documentary proof of
U.S. citizenship. This has frustrated the ability of both
federal and State governments to enforce their noncitizen
voting prohibitions. The SAVE Act fixes this problem and
requires States to only accept and process a voter application
if it contains documentary proof of U.S. citizenship. By
requiring States to enforce the federal and State nonvoting
prohibitions on the front end, it will quell any fears of
noncitizen voting in elections as the election results are
being tabulated and finalized. It will also give confidence to
voters that only U.S. citizens are voting in their elections,
which will increase confidence in the election results.
For U.S. citizens that do not have documentary proof of
U.S. citizenship, States are given cost- free access to federal
and State databases to check the applicant's information to
determine whether they are a U.S. citizen. This information
will be made available to the State within 24 hours to ensure
that the applicant has enough time to register to vote and vote
or possibly cast a provisional ballot in States that allow
voters to provisionally vote. In addition, the SAVE Act tasks
the Election Assistance Commission (``EAC'') with providing
States guidance as to other processes a State can establish in
which an applicant can provide proof of U.S. citizenship. That
process requires the applicant to sign an attestation, under
penalty of perjury, that he or she is a U.S. citizen and
eligible to vote in federal elections, and the State official
that makes the determination that the applicant is a U.S.
citizen and eligible to vote in federal elections must provide
an affidavit, signed by the official swearing or affirming that
the applicant has sufficiently established U.S. citizenship for
the purpose of registering to vote. The EAC is also tasked with
developing a uniform affidavit for use by State officials that
make the determination that an applicant is a citizen of the
U.S. in the event they do not have the documentary proof of
U.S. citizenship required by the SAVE Act. While these steps
seem stringent, it is important that the State official
registering an applicant to vote is absolutely certain that the
applicant is a U.S. citizen. This arduous process will ensure
that only citizens are registered to vote in federal elections.
Similarly, the EAC is tasked with providing States guidance for
applicants that have had a name change and their current
documentation no longer matches their passport or birth
certificate.
In the event a State or State official is suspected of
registering applicants to vote that do not provide documentary
proof of U.S. citizenship, the SAVE Act expands on the NVRA's
existing private right of action to allow citizens to hold
these officials accountable. The private right of action is an
important tool that allows citizens to enforce both the federal
and State prohibitions on noncitizen voting. Additionally, it
will ensure that State officials think twice before registering
applicants without documentary proof of U.S. citizenship out of
fear of litigation. Out of concerns that President Biden's
Executive Order on Promoting Access to Voting is being
misinterpreted by executive branch officials, the legislation
additionally prohibits executive branch employees from
materially assisting noncitizens registering to vote. To ensure
strict compliance with the legislation, the SAVE Act adds
criminal penalties for election officials that knowingly
register an applicant to vote in federal elections without
documentary proof of U.S. citizenship. These penalties can
range from a fine to up to 5 years in prison, or both.
The SAVE Act also clarifies that States can remove
noncitizens from their voter rolls. In so doing, it requires
States to establish a program to remove noncitizens from their
voter rolls within 30 days of the legislation's enactment. With
the combination of States allowing noncitizens to receive
driver's licenses and other benefits, which increases their
chances of ending up on the voter rolls, and States being
prohibited from asking applicants for documentary proof of U.S.
citizenship, there is a strong possibility that noncitizens are
on the voter rolls of almost every State. As such, States are
required to establish a plan to remove noncitizens from their
voter rolls. The legislation gives States no-cost access to
federal databases housed in DHS, SSA, and other federal and
State databases with citizenship information to get the
information necessary to determine if noncitizens are on their
voter rolls. Today, States are sometimes given access to DHS's
SAVE database to help clean their voter rolls, but access to it
is costly, and the Biden Administration has not been as willing
as the Trump Administration to allow States to utilize it. This
legislation rectifies that problem and gives States no-cost
access to federal databases so they can clean their voter
rolls.
In the United States, almost every State has established a
process for voters to vote provisionally in the event they have
not complied with their State's voting requirements.\115\ The
SAVE Act respects each State's provisional voting laws so long
as the voter is a citizen of the United States. The SAVE Act
also requires the Department of Homeland Security to notify
each State's Chief Election Officer (usually the Secretary of
State) when a noncitizen that lives in the State becomes a
citizen of the United States. This additional information will
help States verify the citizenship status of voters that might
be on the rolls or might be attempting to register to vote
based on their new status. Moreover, as the NVRA exempted two
categories of States from its requirements, this legislation
maintains the exemption for States that do not have a process
for voter registration and for the other category of States so
long as the State adopts the SAVE Act's core provisions within
60 days before the next federal election.
---------------------------------------------------------------------------
\115\State by State Provisional Ballot Laws, Ballotpedia, available
at https://ballotpedia.org/State_by_State_Provisional_Ballot_Laws.
---------------------------------------------------------------------------
The SAVE Act is also designed to be implemented immediately
upon enactment. While the EAC is required to provide States
guidance on several different parts of the legislation, the EAC
is required to provide this guidance within 10 days of
enactment. Similarly, the legislation removes any paperwork
reduction act requirements that executive branch agencies might
hide behind to prevent the legislation from being implemented
and enforced.
With a presidential election just six months away, the SAVE
Act requires States to take affirmative steps to ensure
noncitizens are not registering to vote in federal elections
and are not on the voter rolls. The SAVE Act will inspire
Americans' confidence in our elections by requiring States to
take concrete steps to ensure that only citizens of the United
States are voting in American elections.
Committee Action
INTRODUCTION AND REFERRAL
On May 7, 2024, Representative Chip Roy (TX-21) with forty-
six original co-sponsors introduced H.R. 8281, the Safeguard
American Voter Eligibility Act. The bill was referred to the
U.S. House of Representatives Committee on House
Administration.
HEARINGS
For the purposes of clause 3(c)(6)(A) of House rule XIII,
in the 118th Congress, the Committee held one full committee
hearing to develop H.R. 8281.
1. On May 16, 2024, the Committee held a full
committee hearing titled, ``American Confidence in
Elections: Preventing Noncitizen Voting and Other
Foreign Interference.'' The hearing highlighted the
dangers associated with noncitizen voting, how States
do not have the tools nor resources to clean their
voter rolls, and what steps Congress can take to
rectify these problems. It also touched on the
loopholes in the federal campaign finance system that
allow foreign nationals to spend money in U.S.
elections and how Congress can close those loopholes.
Witnesses included the Honorable Cord Byrd, Florida
Secretary of State, the Honorable Hans A. von
Spakovsky, Manager, Election Law Reform Initiative and
Senior Legal Fellow, the Heritage Foundation, the
Honorable J. Christian Adams, President and Chief
Executive Officer of the Public Interest Legal
Foundation, Caitlin Sutherland, Executive Director of
Americans for Public Trust, and Michael Waldman,
President and Chief Executive Officer of the Brennan
Center for Justice.\116\
---------------------------------------------------------------------------
\116\American Confidence in Elections: Preventing Noncitizen Voting
and Other Foreign Interference: Hearing Before the H. Comm. On Admin.,
118th Cong. (2024).
---------------------------------------------------------------------------
Committee Consideration
On May 23, 2024, the U.S. House Committee on House
Administration met in open session and ordered the bill, H.R.
8281, Safeguard American Voter Eligibility Act ANS as amended,
reported favorably to the House of Representatives, by a record
vote of six to one, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following votes occurred during the Committee's consideration
of H.R. 8281:
1. Vote on an amendment to H.R. 8281, offered by Mr.
Morelle, failed by a record vote of 6 noes and 1 aye.
Noes: Steil, B., Griffith, M., Bice, S., Carey, M.,
D'Esposito, A., Lee, L. Aye: Morelle, J.
2. Vote to adopt an amendment to H.R. 8281, offered
by Mrs. Lee, passed by a record vote of 6 ayes and 1
no. Ayes: Steil, B., Griffith, M., Bice, S., Carey, M.,
D'Esposito, A., Lee, L. No: Morelle, J.
3. Vote to adopt H.R. 8281 ANS, as amended, passed by
a record vote of 6 ayes and 1 no. Ayes: Steil, B.,
Griffith, M., Bice, S., Carey, M., D'Esposito, A., Lee,
L. No: Morelle, J.
4. Vote to report H.R. 8281 ANS, as amended, to the
House of Representatives, passed by a record vote of 6
ayes and 1 no. Ayes: Steil, B., Griffith, M., Bice, S.,
Carey, M., D'Esposito, A., Lee, L. No: Morelle, J.
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
Statement of Budget Authority and Related Items
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a)(I) of the
Congressional Budget Act of 1974, the Committee provides the
following opinion and estimate with respect to new budget
authority, entitlement authority, and tax expenditures. The
Committee believes that there will be additional costs
attributable to H.R. 8281. The legislation gives States cost
free access to federal databases housed in the Department of
Homeland Security, the Social Security Administration, and
other federal and State databases where citizenship information
might be stored. For States to clean their voter rolls on an
ongoing basis and, in some cases, determine whether an
applicant registering to vote is a U.S. citizen, they will need
to frequently access these databases.
Congressional Budget Office Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. The Chairman of the Committee shall cause such an
estimate to be printed in the Congressional Record if it is
received by the Committee.
Performance Goals and Objectives
The performance goals and objectives of H.R. 8281 are to
require individuals registering to vote in a federal election,
under any voter registration method, to provide their State
with documentary proof of U.S. citizenship before the State can
accept and process their voter application; but for applicants
registering without documentary proof of U.S. citizenship,
State officials can cross- check the applicant's information
across federal and State databases and determine whether the
applicant is a citizen within twenty-four hours. The
legislation also clarifies that States can remove noncitizens
from their voter rolls, requires States to establish a program
to remove noncitizens from their voter rolls, and gives States
no-cost access to several federal and State databases to do so.
It also expands the NVRA's existing private right of action to
empower citizens to bring civil suits against State election
officials that fail to uphold the act's proof of citizenship
requirement and adds criminal penalties for election officials,
including executive branch officials, that register noncitizens
to vote in Federal elections. Finally, the legislation tasks
the Election Assistance Commission with providing guidance to
States to help implement some of the legislation's
requirements.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 8281 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 8281
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House rule XXI.
Federal Mandates Statement
An estimate of federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such an estimate to be printed in
the Congressional Record if it is received by the Committee.
The legislation contains several unfunded mandates. First, it
imposes a federal documentary proof of U.S. citizenship
requirement on individuals registering to vote in a federal
election that States, registering individuals to vote, will
need to comply with. Second, the legislation requires States to
establish a program where they identify noncitizens by using
federal and State databases in order to remove them from their
voter rolls. While the legislation does give States no-cost
access to these databases, there are no funds provided to help
States carry out this process or inform registered voters they
have been removed from the rolls. Finally, the legislation
tasks the Election Assistance Commission with developing
guidance that States must implement for individuals with a
disability and general guidance that States might choose to
implement to comply with Section 2 of this legislation
generally.
Advisory Committee Statement
H.R. 8281 does not establish or authorize any new advisory
committees.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis
Section 1. Short title
The section provides the short title of the bill, the
``Safeguard American Voter Eligibility (``SAVE Act'').
Section 2. Ensuring only citizens are registered to vote in elections
for federal office
Section 2(b)(1)-(5) defines Documentary Proof of
Citizenship (``DPOC'') and gives the methods that will qualify
including: (1) REAL ID if it indicates the applicant is a
citizen, (2) U.S. passport, (3) applicant's official U.S.
military ID card with U.S. military record of service showing
the applicant was born in the US., (4) valid government-issued
photo ID showing the applicant was born in the U.S., or (5)
valid government-issued photo ID (that does not provide proof
of citizenship) in conjunction with Section 2 (b)(5)(A):
(A) certified birth certificate;
(B) extract from a U.S. hospital Record of
Birth created when the applicant was born that indicate
the applicant was born in the U.S.;
(C) final adoption decree showing the
applicant's name and that the applicant's place of
birth was in the U.S.;
(D) A Consular Report of Birth Abroad of a
citizen of the U.S. or a certification of the
applicant's Report of Birth of a U.S. citizen issued by
the Secretary of State;
(E) Naturalization Certificate issued by the
Department of Homeland Security; or
(F) An American Indican Card issued by the
Department of Homeland Security
If an applicant does not provide the above
documentation, they cannot register to vote. This
includes by mail (on the federal form) or in person at
the DMV or at a voter registration center.
Section 2(b) also mandates all States to require DPOC under
any method the State accepts for registering to vote for
federal elections.
Section 2(c) requires that individuals registering to vote
in federal elections while receiving a State's Motor Vehicle
license must show DPOC that conforms with section 2 (b)(1 5).
Section 2(d)(2) requires the chief election official of
each State to take necessary steps to make sure the public is
aware of the new DPOC requirements.
Section 2(e)(a)(A) requires applicants who use the federal
mail voter registration form to register to vote to show DPOC
to the appropriate State election official in person in order
for the State to register the individual to vote.
Section 2(e)(3) requires each state to work with the
Election Assistance Commission to ensure individuals with a
disability who submit a mail-in voter registration application
are accommodated to present DPOC to the appropriate election
official.
Section 2(f)(3) requires a State or local official to sign
an affidavit affirming or swearing that the individual without
DPOC has provided evidence to establish themselves as a U.S.
citizen for the purpose of registering to vote in federal
elections.
The EAC is tasked with developing this
affidavit that includes:
An explanation of the minimum
standards required for a State officials to
register an applicant who cannot provide DPOC;
A requirement that the State
official must explain the basis for registering
such applicant to vote in such elections.
Section 2(f)(3) requires each state to establish a process
under which an applicant who has discrepancies with their DPOC
can provide clarifying additional documents to explain such
discrepancies.
Section 2(f)(3) & Section 2(f)(4)(A)(B)(C)(D) requires
States to take steps to ensure only U.S. citizens are
registered to vote and to establish a program within 30 days
after the bill's enactment to accomplish this goal.
States can rely on the
Department of Homeland Security's SAVE
database, the Social Security Administration,
State agencies that supply State ID's or
driver's licenses, or other sources, including
databases that provide U.S. citizenship.
In conjunction with the above,
federal agencies are required to respond to
State requests within 24 hours of the request.
Agencies cannot charge States a
fee for the information or for database access.
Section 2(f)(3) also requires the Secretary of Homeland
Security to conduct an investigation to determine whether to
initiate the removal process of non-citizens, who were
unlawfully registered to vote, under the Immigration and
Nationality Act.
Section 2(f)(3) also requires States to remove voters from
their rolls if they are given information providing that a
registered voter is not a citizen of the United States.
Section 2(g) clarifies that the National Voter Registration
Act (``NVRA'') allows States to remove noncitizens from their
voter rolls.
Section 2(h) amends the national mail voter registration
form to include a section requiring a State or local election
official to record the type of document the applicant presented
as documentary proof of U.S. citizenship, including the date of
issuance, the date of expiration (if any), the office which
issued the document, and any unique identification number
associated with the document.
Section 2(i) expands the NVRA's existing private right of
action, to include claims against election officials that
register applicants to vote without documentary proof of U.S.
citizenship.
Section 2(j) also adds a criminal penalty to the NVRA
against those who register applicants who do not provide
documentary proof of citizenship. It also makes it a crime for
an officer or employee of the executive branch to provide
material assistance to a noncitizen attempting to register to
vote in a federal election.
Penalties include fines and or
imprisonment not to exceed 5 years.
Section 2(k) provides that this legislation and the NVRA
will continue to not apply to States that do not have voter
registration. However, this legislation, in addition to the
NVRA's public records requirements, will apply in States that
are NVRA exempt unless the State adopts this legislation's core
provisions not later than 60 days before an election for
federal office.
Section 3. Election Assistance Commission guidance
Requires the Election Assistance Commission to adopt and
transmit guidance to each State's Chief Election Official to
implement the bill's requirements in section 2. This must be
done within 10 days after the bill's enactment.
Section 4. Inapplicability of Paperwork Reduction Act
The Paperwork Reduction Act will not apply to the
development or modifications of voter registration material
provided in this bill.
Section 5. Duty of Secretary of Homeland Security to notify election
officials of naturalization
Requires Secretary of Homeland Security to provide notice
to the State's Chief Election Officer (usually the Secretary of
State) when a noncitizen that lives in the State becomes a
citizen of the United States.
Section 6. Rule of construction regarding provisional ballots
Rule of construction keeping the provisional ballot laws of
every State in place with the caveat that the applicant must
provide (or the State when it gets the information) proof of
citizenship for their vote to be counted.
Section 7. Rule of construction regarding effect on state exemptions
from other federal laws
Rule of construction providing that this legislation should
not be construed to unexempt States from other exemptions it
has under federal law.
Section 8. Effective date
The legislation becomes effective on the date of enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
NATIONAL VOTER REGISTRATION ACT OF 1993
* * * * * * *
SEC. 3. DEFINITIONS.
[As used] (a) In General._As used in this Act--
(1) the term ``election'' has the meaning stated in
section 301(1) of the Federal Election Campaign Act of
1971 (2 U.S.C. 431(1));
(2) the term ``Federal office'' has the meaning
stated in section 301(3) of the Federal Election
Campaign Act of 1971 (2 U.S.C. 431(3));
(3) the term ``motor vehicle driver's license''
includes any personal identification document issued by
a State motor vehicle authority;
(4) the term ``State'' means a State of the United
States and the District of Columbia; and
(5) the term ``voter registration agency'' means an
office designated under section 7(a)(1) to perform
voter registration activities.
(b) Documentary Proof of United States Citizenship.--As used
in this Act, the term ``documentary proof of United States
citizenship'' means, with respect to an applicant for voter
registration, any of the following:
(1) A form of identification issued consistent with
the requirements of the REAL ID Act of 2005 that
indicates the applicant is a citizen of the United
States.
(2) A valid United States passport.
(3) The applicant's official United States military
identification card, together with a United States
military record of service showing that the applicant's
place of birth was in the United States.
(4) A valid government-issued photo identification
card issued by a Federal, State or Tribal government
showing that the applicant's place of birth was in the
United States.
(5) A valid government-issued photo identification
card issued by a Federal, State or Tribal government
other than an identification described in paragraphs
(1) through (4), but only if presented together with
one or more of the following:
(A) A certified birth certificate issued by a
State, a unit of local government in a State,
or a Tribal government which--
(i) was issued by the State, unit of
local government, or Tribal government
in which the applicant was born;
(ii) was filed with the office
responsible for keeping vital records
in the State;
(iii) includes the full name, date of
birth, and place of birth of the
applicant;
(iv) lists the full names of one or
both of the parents of the applicant;
(v) has the signature of an
individual who is authorized to sign
birth certificates on behalf of the
State, unit of local government, or
Tribal government in which the
applicant was born;
(vi) includes the date that the
certificate was filed with the office
responsible for keeping vital records
in the State; and
(vii) has the seal of the State, unit
of local government, or Tribal
government that issued the birth
certificate.
(B) An extract from a United States hospital
Record of Birth created at the time of the
applicant's birth which indicates that the
applicant's place of birth was in the United
States.
(C) A final adoption decree showing the
applicant's name and that the applicant's place
of birth was in the United States.
(D) A Consular Report of Birth Abroad of a
citizen of the United States or a certification
of the applicant's Report of Birth of a United
States citizen issued by the Secretary of
State.
(E) A Naturalization Certificate or
Certificate of Citizenship issued by the
Secretary of Homeland Security or any other
document or method of proof of United States
citizenship issued by the Federal government
pursuant to the Immigration and Nationality
Act.
(F) An American Indian Card issued by the
Department of Homeland Security with the
classification `KIC'.
SEC. 4. NATIONAL PROCEDURES FOR VOTER REGISTRATION FOR ELECTIONS FOR
FEDERAL OFFICE.
(a) In General.--Except as provided in [subsection (b)]
subsection (c), notwithstanding any other Federal or State law,
in addition to any other method of voter registration provided
for under State law, each State shall establish procedures to
register to vote in elections for Federal office--
(1) by application made simultaneously with an
application for a motor vehicle driver's license
pursuant to section 5;
(2) by mail application pursuant to section 6; and
(3) by application in person--
(A) at the appropriate registration site
designated with respect to the residence of the
applicant in accordance with State law; and
(B) at a Federal, State, or nongovernmental
office designated under section 7.
(b) Requiring Applicants to Present Documentary Proof of
United States Citizenship.--Under any method of voter
registration in a State, the State shall not accept and process
an application to register to vote in an election for Federal
office unless the applicant presents documentary proof of
United States citizenship with the application.
[(b)] (c) Nonapplicability to Certain States.--[This Act does
not apply to a State] Except with respect to the requirements
under subsection (i) and (j) of section 8 in the case of a
State described in paragraph (2), this Act does not apply to a
State described in either or both of the following paragraphs:
(1) A State in which, under law that is in effect
continuously on and after August 1, 1994, there is no
voter registration requirement for any voter in the
State with respect to an election for Federal office.
(2) A State in which, under law that is in effect
continuously on and after August 1, 1994, or that was
enacted on or prior to August 1, 1994, and by its terms
is to come into effect upon the enactment of this Act,
so long as that law remains in effect, all voters in
the State may register to vote at the polling place at
the time of voting in a general election for Federal
office.
(d) Permitting States to Adopt Certain Requirements After
Enactment.--Subsections (i) and (j) of section 8 shall not
apply to a State described in subsection (c)(2) if the State,
by law or regulation, adopts requirements which are identical
to the requirements under such subsections not later than 60
days prior to the date of the first election for Federal office
which is held in the State after the date of the enactment of
the SAVE Act.
SEC. 5. SIMULTANEOUS APPLICATION FOR VOTER REGISTRATION AND
APPLICATION FOR MOTOR VEHICLE DRIVER'S LICENSE.
(a) In General.--(1) [Each State motor vehicle driver's
license application] Subject to the requirements under section
8(j), each State motor vehicle driver's license application
(including any renewal application) submitted to the
appropriate State motor vehicle authority under State law shall
serve as an application for voter registration with respect to
elections for Federal office unless the applicant fails to sign
the voter registration application.
(2) An application for voter registration submitted under
paragraph (1) shall be considered as updating any previous
voter registration by the applicant.
(b) Limitation on Use of Information.--No information
relating to the failure of an applicant for a State motor
vehicle driver's license to sign a voter registration
application may be used for any purpose other than voter
registration.
(c) Forms and Procedures.--(1) [Each State shall include]
Subject to the requirements under section 8(j), each State
shall include a voter registration application form for
elections for Federal office as part of an application for a
State motor vehicle driver's license.
(2) The voter registration application portion of an
application for a State motor vehicle driver's license--
(A) may not require any information that duplicates
information required in the driver's license portion of
the form (other than a second signature or other
information necessary under subparagraph (C));
(B) may require only the minimum amount of
information necessary to--
(i) prevent duplicate voter registrations;
[and]
(ii) enable State election officials to
assess the eligibility of the applicant and to
administer voter registration and other parts
of the election process; and
(iii) verify that the applicant is a citizen
of the United States;
(C) shall include a statement that--
(i) states each eligibility requirement
[(including citizenship)], including the
requirement that the applicant provides
documentary proof of United States citizenship;
(ii) contains an attestation that the
applicant meets each such requirement; and
(iii) requires the signature of the
applicant, under penalty of perjury;
(D) shall include, in print that is identical to that
used in the attestation portion of the application--
(i) the information required in section
8(a)(5) (A) and (B);
(ii) a statement that, if an applicant
declines to register to vote, the fact that the
applicant has declined to register will remain
confidential and will be used only for voter
registration purposes; and
(iii) a statement that if an applicant does
register to vote, the office at which the
applicant submits a voter registration
application will remain confidential and will
be used only for voter registration purposes[;
and], other than as evidence in a criminal
proceeding or immigration proceeding brought
against an applicant who knowingly attempts to
register to vote and knowingly makes a false
declaration under penalty of perjury that the
applicant meets the eligibility requirements to
register to vote in an election for Federal
office; and
(E) shall be made available (as submitted by the
applicant, or in machine readable or other format) to
the appropriate State election official as provided by
State law.
(d) Change of Address.--Any change of address form submitted
in accordance with State law for purposes of a State motor
vehicle driver's license shall serve as notification of change
of address for voter registration with respect to elections for
Federal office for the registrant involved unless the
registrant states on the form that the change of address is not
for voter registration purposes.
(e) Transmittal Deadline.--(1) Subject to paragraph (2), a
completed voter registration portion of an application for a
State motor vehicle driver's license accepted at a State motor
vehicle authority shall be transmitted to the appropriate State
election official not later than 10 days after the date of
acceptance.
(2) If a registration application is accepted within 5 days
before the last day for registration to vote in an election,
the application shall be transmitted to the appropriate State
election official not later than 5 days after the date of
acceptance.
SEC. 6. MAIL REGISTRATION.
(a) Form.--(1) [Each State shall accept and use] Subject to
the requirements under section 8(j), each State shall accept
and use the mail voter registration application form prescribed
by the [Federal Election Commission] Election Assistance
Commission pursuant to section 9(a)(2) for the registration of
voters in elections for Federal office.
(2) In addition to accepting and using the form described in
paragraph (1), a State may develop and use a mail voter
registration form that meets all of the criteria stated in
section 9(b) for the registration of voters in elections for
Federal office.
(3) A form described in paragraph (1) or (2) shall be
accepted and used for notification of a registrant's change of
address.
(b) Availability of Forms.--The chief State election official
of a State shall make the forms described in subsection (a)
available for distribution through governmental and private
entities, with particular emphasis on making them available for
organized voter registration programs. The chief State election
official of a State shall take such steps as may be necessary
to ensure that residents of the State are aware of the
requirement to provide documentary proof of United States
citizenship to register to vote in elections for Federal office
in the State.
(c) First-Time Voters.--(1) Subject to paragraph (2), a State
may by law require a person to vote in person if--
(A) the person was registered to vote in a
jurisdiction by mail; [and]
(B) the person has not previously voted in that
jurisdiction[.]; and
(C) the person did not provide documentary proof of
United States citizenship when registering to vote.
(2) Paragraph (1) does not apply in the case of a person--
(A) who is entitled to vote by absentee ballot under
the Uniformed and Overseas Citizens Absentee Voting Act
(42 U.S.C. 1973ff-1 et seq.);
(B) who is provided the right to vote otherwise than
in person under section 3(b)(2)(B)(ii) of the Voting
Accessibility for the Elderly and Handicapped Act (42
U.S.C. 1973ee-1(b)(2)(B)(ii)); or
(C) who is entitled to vote otherwise than in person
under any other Federal law.
(e) Ensuring Proof of United States Citizenship.--
(1) Presenting proof of united states citizenship to
election official.--An applicant who submits the mail
voter registration application form prescribed by the
Election Assistance Commission pursuant to section
9(a)(2) or a form described in paragraph (1) or (2) of
subsection (a) shall not be registered to vote in an
election for Federal office unless--
(A) the applicant presents documentary proof
of United States citizenship in person to the
office of the appropriate election official not
later than the deadline provided by State law
for the receipt of a completed voter
registration application for the election; or
(B) in the case of a State which permits an
individual to register to vote in an election
for Federal office at a polling place on the
day of the election and on any day when voting,
including early voting, is permitted for the
election, the applicant presents documentary
proof of United States citizenship to the
appropriate election official at the polling
place not later than the date of the election.
(2) Notification of requirement.--Upon receiving an
otherwise completed mail voter registration application
form prescribed by the Election Assistance Commission
pursuant to section 9(a)(2) or a form described in
paragraph (1) or (2) of subsection (a), the appropriate
election official shall transmit a notice to the
applicant of the requirement to present documentary
proof of United States citizenship under this
subsection, and shall include in the notice
instructions to enable the applicant to meet the
requirement.
(3) Accessibility.--Each State shall, in consultation
with the Election Assistance Commission, ensure that
reasonable accommodations are made to allow an
individual with a disability who submits the mail voter
registration application form prescribed by the
Election Assistance Commission pursuant to section
9(a)(2) or a form described in paragraph (1) or (2) of
subsection (a) to present documentary proof of United
States citizenship to the appropriate election
official.
(d) Undelivered Notices.--If a notice of the disposition of a
mail voter registration application under section 8(a)(2) is
sent by nonforwardable mail and is returned undelivered, the
registrar may proceed in accordance with section 8(d).
SEC. 7. VOTER REGISTRATION AGENCIES.
(a) Designation.--(1) Each State shall designate agencies for
the registration of voters in elections for Federal office.
(2) Each State shall designate as voter registration
agencies--
(A) all offices in the State that provide public
assistance; and
(B) all offices in the State that provide State-
funded programs primarily engaged in providing services
to persons with disabilities.
(3)(A) In addition to voter registration agencies designated
under paragraph (2), each State shall designate other offices
within the State as voter registration agencies.
(B) Voter registration agencies designated under subparagraph
(A) may include--
(i) State or local government offices such as public
libraries, public schools, offices of city and county
clerks (including marriage license bureaus), fishing
and hunting license bureaus, government revenue
offices, unemployment compensation offices, and offices
not described in paragraph (2)(B) that provide services
to persons with disabilities; and
(ii) Federal and nongovernmental offices, with the
agreement of such offices.
(4)(A) At each voter registration agency, the following
services shall be made available:
(i) Distribution of mail voter registration
application forms in accordance with paragraph (6).
(ii) Assistance to applicants in completing voter
registration application forms, unless the applicant
refuses such assistance.
(iii) Acceptance of completed voter registration
application forms for transmittal to the appropriate
State election official.
(iv) Receipt of documentary proof of United States
citizenship of each applicant to register to vote in
elections for Federal office in the State.
(B) If a voter registration agency designated under paragraph
(2)(B) provides services to a person with a disability at the
person's home, the agency shall provide the services described
in subparagraph (A) at the person's home.
(5) A person who provides service described in paragraph (4)
shall not--
(A) seek to influence an applicant's political
preference or party registration;
(B) display any such political preference or party
allegiance;
(C) make any statement to an applicant or take any
action the purpose or effect of which is to discourage
the applicant from registering to vote; or
(D) make any statement to an applicant or take any
action the purpose or effect of which is to lead the
applicant to believe that a decision to register or not
to register has any bearing on the availability of
services or benefits.
(6) A voter registration agency that is an office that
provides service or assistance in addition to conducting voter
registration shall--
(A) distribute with each application for such service
or assistance, and with each recertification, renewal,
or change of address form relating to such service or
assistance--
(i) the mail voter registration application
form described in section 9(a)(2), including a
statement that--
(I) specifies each eligibility
requirement [(including citizenship)],
including the requirement that the
applicant provides documentary proof of
United States citizenship;
(II) contains an attestation that the
applicant meets each such requirement;
and
(III) requires the signature of the
applicant, under penalty of perjury; or
(ii) the office's own form if it is
equivalent to the form described in section
9(a)(2),
unless the applicant, in writing, declines to register
to vote;
(B) ask the applicant the question, ``Are you a
citizen of the United States?'' and if the applicant
answers in the affirmative require documentary proof of
United States citizenship prior to providing the form
under subparagraph (C);
[(B)] (C) provide a form that includes--
(i) the question, ``If you are not registered
to vote where you live now, would you like to
apply to register to vote here today?'';
(ii) if the agency provides public
assistance, the statement, ``Applying to
register or declining to register to vote will
not affect the amount of assistance that you
will be provided by this agency.'';
(iii) boxes for the applicant to check to
indicate whether the applicant would like to
register or declines to register to vote
(failure to check either box being deemed to
constitute a declination to register for
purposes of subparagraph (C)), together with
the statement (in close proximity to the boxes
and in prominent type), ``IF YOU DO NOT CHECK
EITHER BOX, YOU WILL BE CONSIDERED TO HAVE
DECIDED NOT TO REGISTER TO VOTE AT THIS
TIME.'';
(iv) the statement, ``If you would like help
in filling out the voter registration
application form, we will help you. The
decision whether to seek or accept help is
yours. You may fill out the application form in
private.''; and
(v) the statement, ``If you believe that
someone has interfered with your right to
register or to decline to register to vote,
your right to privacy in deciding whether to
register or in applying to register to vote, or
your right to choose your own political party
or other political preference, you may file a
complaint with ______.'', the blank being
filled by the name, address, and telephone
number of the appropriate official to whom such
a complaint should be addressed; and
(C) provide to each applicant who does not decline to
register to vote the same degree of assistance with
regard to the completion of the registration
application form as is provided by the office with
regard to the completion of its own forms, unless the
applicant refuses such assistance.
(7) No information relating to a declination to register to
vote in connection with an application made at an office
described in paragraph (6) may be used for any purpose other
than voter registration.
(b) Federal Government and Private Sector Cooperation.--All
departments, agencies, and other entities of the executive
branch of the Federal Government shall, to the greatest extent
practicable, cooperate with the States in carrying out
subsection (a), and all nongovernmental entities are encouraged
to do so.
(c) Armed Forces Recruitment Offices.--(1) Each State and the
Secretary of Defense shall jointly develop and implement
procedures for persons who are citizens of the United States to
apply to register to vote at recruitment offices of the Armed
Forces of the United States.
(2) A recruitment office of the Armed Forces of the United
States shall be considered to be a voter registration agency
designated under subsection (a)(2) for all purposes of this
Act.
(d) Transmittal Deadline.--(1) Subject to paragraph (2), a
completed registration application accepted at a voter
registration agency shall be transmitted to the appropriate
State election official not later than 10 days after the date
of acceptance.
(2) If a registration application is accepted within 5 days
before the last day for registration to vote in an election,
the application shall be transmitted to the appropriate State
election official not later than 5 days after the date of
acceptance.
SEC. 8. REQUIREMENTS WITH RESPECT TO ADMINISTRATION OF VOTER
REGISTRATION.
(a) In General.--[In the administration of voter
registration] Subject to the requirements of subsection (j), in
the administration of voter registration for elections for
Federal office, each State shall--
(1) ensure that any eligible applicant is registered
to vote in an election--
(A) in the case of registration with a motor
vehicle application under section 5, if the
valid voter registration form of the applicant
is submitted to the appropriate State motor
vehicle authority not later than the lesser of
30 days, or the period provided by State law,
before the date of the election;
(B) in the case of registration by mail under
section 6, if the valid voter registration form
of the applicant is postmarked not later than
the lesser of 30 days, or the period provided
by State law, before the date of the election;
(C) in the case of registration at a voter
registration agency, if the valid voter
registration form of the applicant is accepted
at the voter registration agency not later than
the lesser of 30 days, or the period provided
by State law, before the date of the election;
and
(D) in any other case, if the valid voter
registration form of the applicant is received
by the appropriate State election official not
later than the lesser of 30 days, or the period
provided by State law, before the date of the
election;
(2) require the appropriate State election official
to send notice to each applicant of the disposition of
the application;
(3) provide that the name of a registrant may not be
removed from the official list of eligible voters
except--
(A) at the request of the registrant;
(B) as provided by State law, by reason of
criminal conviction or mental incapacity; [or]
(C)as provided under paragraph (4);
(D) based on documentary proof or verified
information that the registrant is not a United
States citizen; or
(E) the registration otherwise fails to
comply with applicable State law;
(4) conduct a general program that makes a reasonable
effort to remove the names of ineligible voters from
the official lists of eligible voters by reason of--
(A) the death of the registrant; [or]
(B) a change in the residence of the
registrant, in accordance with subsections (b),
(c), and (d); or
(C) documentary proof or verified information
that the registrant is not a United States
citizen;
(5) inform applicants under sections 5, 6, and 7 of--
(A) voter eligibility requirements; and
(B) penalties provided by law for submission
of a false voter registration application; and
(6) ensure that the identity of the voter
registration agency through which any particular voter
is registered is not disclosed to the public.
(b) Confirmation of Voter Registration.--Any State program or
activity to protect the integrity of the electoral process by
ensuring the maintenance of an accurate and current voter
registration roll for elections for Federal office--
(1) shall be uniform, nondiscriminatory, and in
compliance with the Voting Rights Act of 1965 (42
U.S.C. 1973 et seq.); and
(2) shall not result in the removal of the name of
any person from the official list of voters registered
to vote in an election for Federal office by reason of
the person's failure to vote, except that nothing in
this paragraph may be construed to prohibit a State
from using the procedures described in subsections (c)
and (d) to remove an individual from the official list
of eligible voters if the individual--
(A) has not either notified the applicable
registrar (in person or in writing) or
responded during the period described in
subparagraph (B) to the notice sent by the
applicable registrar; and then
(B) has not voted or appeared to vote in 2 or
more consecutive general elections for Federal
office.
(c) Voter Removal Programs.--(1) A State may meet the
requirement of subsection (a)(4) by establishing a program
under which--
(A) change-of-address information supplied by the
Postal Service through its licensees is used to
identify registrants whose addresses may have changed;
and
(B) if it appears from information provided by the
Postal Service that--
(i) a registrant has moved to a different
residence address in the same registrar's
jurisdiction in which the registrant is
currently registered, the registrar changes the
registration records to show the new address
and sends the registrant a notice of the change
by forwardable mail and a postage prepaid pre-
addressed return form by which the registrant
may verify or correct the address information;
or
(ii) the registrant has moved to a different
residence address not in the same registrar's
jurisdiction, the registrar uses the notice
procedure described in subsection (d)(2) to
confirm the change of address.
(2)(A) A State shall complete, not later than 90 days prior
to the date of a primary or general election for Federal
office, any program the purpose of which is to systematically
remove the names of ineligible voters from the official lists
of eligible voters.
(B) Subparagraph (A) shall not be construed to preclude--
(i) the removal of names from official lists of
voters on a basis described in paragraph (3) (A) or (B)
or [(4)(A)] (4)(A) or (C) of subsection (a); or
(ii) correction of registration records pursuant to
this Act.
(d) Removal of Names From Voting Rolls.--(1) A State shall
not remove the name of a registrant from the official list of
eligible voters in elections for Federal office on the ground
that the registrant has changed residence unless the
registrant--
(A) confirms in writing that the registrant has
changed residence to a place outside the registrar's
jurisdiction in which the registrant is registered; or
(B)(i) has failed to respond to a notice described in
paragraph (2); and
(ii) has not voted or appeared to vote (and, if
necessary, correct the registrar's record of the
registrant's address) in an election during the period
beginning on the date of the notice and ending on the
day after the date of the second general election for
Federal office that occurs after the date of the
notice.
(2) A notice is described in this paragraph if it is a
postage prepaid and pre-addressed return card, sent by
forwardable mail, on which the registrant may state his or her
current address, together with a notice to the following
effect:
(A) If the registrant did not change his or her
residence, or changed residence but remained in the
registrar's jurisdiction, the registrant should return
the card not later than the time provided for mail
registration under subsection (a)(1)(B). If the card is
not returned, affirmation or confirmation of the
registrant's address may be required before the
registrant is permitted to vote in a Federal election
during the period beginning on the date of the notice
and ending on the day after the date of the second
general election for Federal office that occurs after
the date of the notice, and if the registrant does not
vote in an election during that period the registrant's
name will be removed from the list of eligible voters.
(B) If the registrant has changed residence to a
place outside the registrar's jurisdiction in which the
registrant is registered, information concerning how
the registrant can continue to be eligible to vote.
(3) A voting registrar shall correct an official list of
eligible voters in elections for Federal office in accordance
with change of residence information obtained in conformance
with this subsection.
(e) Procedure for Voting Following Failure To Return Card.--
(1) A registrant who has moved from an address in the area
covered by a polling place to an address in the same area
shall, notwithstanding failure to notify the registrar of the
change of address prior to the date of an election, be
permitted to vote at that polling place upon oral or written
affirmation by the registrant of the change of address before
an election official at that polling place.
(2)(A) A registrant who has moved from an address in the area
covered by one polling place to an address in an area covered
by a second polling place within the same registrar's
jurisdiction and the same congressional district and who has
failed to notify the registrar of the change of address prior
to the date of an election, at the option of the registrant--
(i) shall be permitted to correct the voting records
and vote at the registrant's former polling place, upon
oral or written affirmation by the registrant of the
new address before an election official at that polling
place; or
(ii)(I) shall be permitted to correct the voting
records and vote at a central location within the same
registrar's jurisdiction designated by the registrar
where a list of eligible voters is maintained, upon
written affirmation by the registrant of the new
address on a standard form provided by the registrar at
the central location; or
(II) shall be permitted to correct the voting records
for purposes of voting in future elections at the
appropriate polling place for the current address and,
if permitted by State law, shall be permitted to vote
in the present election, upon confirmation by the
registrant of the new address by such means as are
required by law.
(B) If State law permits the registrant to vote in the
current election upon oral or written affirmation by the
registrant of the new address at a polling place described in
subparagraph (A)(i) or (A)(ii)(II), voting at the other
locations described in subparagraph (A) need not be provided as
options.
(3) If the registration records indicate that a registrant
has moved from an address in the area covered by a polling
place, the registrant shall, upon oral or written affirmation
by the registrant before an election official at that polling
place that the registrant continues to reside at the address
previously made known to the registrar, be permitted to vote at
that polling place.
(f) Change of Voting Address Within a Jurisdiction.--In the
case of a change of address, for voting purposes, of a
registrant to another address within the same registrar's
jurisdiction, the registrar shall correct the voting
registration list accordingly, and the registrant's name may
not be removed from the official list of eligible voters by
reason of such a change of address except as provided in
subsection (d).
(g) Conviction in Federal Court.--(1) On the conviction of a
person of a felony in a district court of the United States,
the United States attorney shall give written notice of the
conviction to the chief State election official designated
under section 10 of the State of the person's residence.
(2) A notice given pursuant to paragraph (1) shall include--
(A) the name of the offender;
(B) the offender's age and residence address;
(C) the date of entry of the judgment;
(D) a description of the offenses of which the
offender was convicted; and
(E) the sentence imposed by the court.
(3) On request of the chief State election official of a
State or other State official with responsibility for
determining the effect that a conviction may have on an
offender's qualification to vote, the United States attorney
shall provide such additional information as the United States
attorney may have concerning the offender and the offense of
which the offender was convicted.
(4) If a conviction of which notice was given pursuant to
paragraph (1) is overturned, the United States attorney shall
give the official to whom the notice was given written notice
of the vacation of the judgment.
(5) The chief State election official shall notify the voter
registration officials of the local jurisdiction in which an
offender resides of the information received under this
subsection.
(h) Reduced Postal Rates.--(1) Subchapter II of chapter 36 of
title 39, United States Code, is amended by adding at the end
the following:
* * * * * * *
(2) The first sentence of section 2401(c) of title 39, United
States Code, is amended by striking out ``and 3626(a)-(h) and
(j)-(k) of this title,'' and inserting in lieu thereof
``3626(a)-(h), 3626(j)-(k), and 3629 of this title''.
(3) Section 3627 of title 39, United States Code, is amended
by striking out ``or 3626 of this title,'' and inserting in
lieu thereof ``3626, or 3629 of this title''.
(4) The table of sections for chapter 36 of title 39, United
States Code, is amended by inserting after the item relating to
section 3628 the following new item:
``3629. Reduced rates for voter registration purposes.
(i) Public Disclosure of Voter Registration Activities.--(1)
Each State shall maintain for at least 2 years and shall make
available for public inspection and, where available,
photocopying at a reasonable cost, all records concerning the
implementation of programs and activities conducted for the
purpose of ensuring the accuracy and currency of official lists
of eligible voters, except to the extent that such records
relate to a declination to register to vote or to the identity
of a voter registration agency through which any particular
voter is registered.
(2) The records maintained pursuant to paragraph (1) shall
include lists of the names and addresses of all persons to whom
notices described in subsection (d)(2) are sent, and
information concerning whether or not each such person has
responded to the notice as of the date that inspection of the
records is made.
(j) Ensuring Only Citizens are Registered to Vote.--
(1) In general.--Notwithstanding any other provision
of this Act, a State may not register an individual to
vote in elections for Federal office held in the State
unless, at the time the individual applies to register
to vote, the individual provides documentary proof of
United States citizenship.
(2) Additional processes in certain cases.--
(A) Process for those without documentary
proof.--
(i) In general.--Subject to any
relevant guidance adopted by the
Election Assistance Commission, each
State shall establish a process under
which an applicant who cannot provide
documentary proof of United States
citizenship under paragraph (1) may, if
the applicant signs an attestation
under penalty of perjury that the
applicant is a citizen of the United
States and eligible to vote in
elections for Federal office, submit
such other evidence to the appropriate
State or local official demonstrating
that the applicant is a citizen of the
United States and such official shall
make a determination as to whether the
applicant has sufficiently established
United States citizenship for purposes
of registering to vote in elections for
Federal office in the State.
(ii) Affidavit requirement.--If a
State or local official makes a
determination under clause (i) that an
applicant has sufficiently established
United States citizenship for purposes
of registering to vote in elections for
Federal office in the State, such
determination shall be accompanied by
an affidavit developed under clause
(iii) signed by the official swearing
or affirming the applicant sufficiently
established United States citizenship
for purposes of registering to vote.
(iii) Development of affidavit by the
Election Assistance Commission.--The
Election Assistance Commission shall
develop a uniform affidavit for use by
State and local officials under clause
(ii), which shall--
(I) include 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 to vote in
elections for Federal office in
the State; and
(II) require the official to
explain the basis for
registering such applicant to
vote in such elections.
(B) Process in case of certain discrepancies
in documentation.--Subject to any relevant
guidance adopted by the Election Assistance
Commission, each State shall establish a
process under which an applicant can provide
such additional documentation to the
appropriate election official of the State as
may be necessary to establish that the
applicant is a citizen of the United States in
the event of a discrepancy with respect to the
applicant's documentary proof of United States
citizenship.
(3) State requirements.--Each State shall take
affirmative steps on an ongoing basis to ensure that
only United States citizens are registered to vote
under the provisions of this Act, which shall include
the establishment of a program described in paragraph
(4) not later than 30 days after the date of the
enactment of this subsection.
(4) Program described.--A State may meet the
requirements of paragraph (3) by establishing a program
under which the State identifies individuals who are
not United States citizens using information supplied
by one or more of the following sources:
(A) The Department of Homeland Security
through the Systematic Alien Verification for
Entitlements (``SAVE'') or otherwise.
(B) The Social Security Administration
through the Social Security Number Verification
Service, or otherwise.
(C) State agencies that supply State
identification cards or driver's licenses where
the agency confirms the United States
citizenship status of applicants.
(D) Other sources, including databases, which
provide confirmation of United States
citizenship status.
(5) Availability of information.--
(A) In general.--At the request of a State
election official (including a request related
to a process established by a State under
paragraph (2)(A) or (2)(B)), any head of a
Federal department or agency possessing
information relevant to determining the
eligibility of an individual to vote in
elections for Federal office shall, not later
than 24 hours after receipt of such request,
provide the official with such information as
may be necessary to enable the official to
verify that an applicant for voter registration
in elections for Federal office held in the
State or a registrant on the official list of
eligible voters in elections for Federal office
held in the State is a citizen of the United
States, which shall include providing the
official with such batched information as may
be requested by the official.
(B) Use of SAVE system.--The Secretary of
Homeland Security may respond to a request
received under paragraph (1) by using the
system for the verification of immigration
status under the applicable provisions of
section 1137 of the Social Security Act (42
U.S.C. 1320b-7), as established pursuant to
section 121(c) of the Immigration Reform and
Control Act of 1986 (Public Law 99-603).
(C) Sharing of information.--The heads of
Federal departments and agencies shall share
information with each other with respect to an
individual who is the subject of a request
received under paragraph (A) in order to enable
them to respond to the request.
(D) Investigation for purposes of removal.--
The Secretary of Homeland Security shall
conduct an investigation to determine whether
to initiate removal proceedings under section
239 of the Immigration and Nationality Act (8
U.S.C. 1229) if it is determined pursuant to
subparagraph (A) or (B) that an alien (as such
term is defined in section 101 of the
Immigration and Nationality Act (8 U.S.C.
1101)) is unlawfully registered to vote in
elections for Federal office.
(E) Prohibiting fees.--The head of a Federal
department or agency may not charge a fee for
responding to a State's request under paragraph
(A).
(k) Removal of Noncitizens From Registration Rolls.--A State
shall remove an individual who is not a citizen of the United
States from the official list of eligible voters for elections
for Federal office held in the State at any time upon receipt
of documentation or verified information that a registrant is
not a United States citizen.
[(j)] (l) Definition.--For the purposes of this section, the
term ``registrar's jurisdiction'' means--
(1) an incorporated city, town, borough, or other
form of municipality;
(2) if voter registration is maintained by a county,
parish, or other unit of government that governs a
larger geographic area than a municipality, the
geographic area governed by that unit of government; or
(3) if voter registration is maintained on a
consolidated basis for more than one municipality or
other unit of government by an office that performs all
of the functions of a voting registrar, the geographic
area of the consolidated municipalities or other
geographic units.
SEC. 9. FEDERAL COORDINATION AND REGULATIONS.
(a) In General.--The Election Assistance Commission--
(1) in consultation with the chief election officers
of the States, shall prescribe such regulations as are
necessary to carry out paragraphs (2) and (3);
(2) in consultation with the chief election officers
of the States, shall develop a mail voter registration
application form for elections for Federal office;
(3) not later than June 30 of each odd-numbered year,
shall submit to the Congress a report assessing the
impact of this Act on the administration of elections
for Federal office during the preceding 2-year period
and including recommendations for improvements in
Federal and State procedures, forms, and other matters
affected by this Act; and
(4) shall provide information to the States with
respect to the responsibilities of the States under
this Act.
(b) Contents of Mail Voter Registration Form.--The mail voter
registration form developed under subsection (a)(2)--
(1) may require only such identifying information
(including the signature of the applicant) and other
information (including data relating to previous
registration by the applicant), as is necessary to
enable the appropriate State election official to
assess the eligibility of the applicant and to
administer voter registration and other parts of the
election process;
(2) shall include a statement that--
(A) specifies each eligibility requirement
[(including citizenship)] (including an
explanation of what is required to present
documentary proof of United States
citizenship);
(B) contains an attestation that the
applicant meets each such requirement; and
(C) requires the signature of the applicant,
under penalty of perjury;
(3) may not include any requirement for notarization
or other formal authentication; [and]
(4) shall include, in print that is identical to that
used in the attestation portion of the application--
[(i)] (A) the information required in section
8(a)(5) (A) and (B);
[(ii)] (B) a statement that, if an applicant
declines to register to vote, the fact that the
applicant has declined to register will remain
confidential and will be used only for voter
registration purposes; and
[(iii)] (C) a statement that if an applicant
does register to vote, the office at which the
applicant submits a voter registration
application will remain confidential and will
be used only for voter registration
purposes[.], other than as evidence in a
criminal proceeding or immigration proceeding
brought against an applicant who attempts to
register to vote and makes a false declaration
under penalty of perjury that the applicant
meets the eligibility requirements to register
to vote in an election for Federal office; and
(5) shall include a section, for use only by a State
or local election official, to record the type of
document the applicant presented as documentary proof
of United States citizenship, including the date of
issuance, the date of expiration (if any), the office
which issued the document, and any unique
identification number associated with the document.
* * * * * * *
SEC. 11. CIVIL ENFORCEMENT AND PRIVATE RIGHT OF ACTION.
(a) Attorney General.--The Attorney General may bring a civil
action in an appropriate district court for such declaratory or
injunctive relief as is necessary to carry out this Act.
(b) Private Right of Action.--(1) A person who is aggrieved
by [a violation of this Act] a violation of this Act, including
the act of an election official who registers an applicant to
vote in an election for Federal office who fails to present
documentary proof of United States citizenship, may provide
written notice of the violation to the chief election official
of the State involved.
(2) If the violation is not corrected within 90 days after
receipt of a notice under paragraph (1), or within 20 days
after receipt of the notice if the violation occurred within
120 days before the date of an election for Federal office, the
aggrieved person may bring a civil action in an appropriate
district court for declaratory or injunctive relief with
respect to the violation.
(3) If the violation occurred within 30 days before the date
of an election for Federal office, the aggrieved person need
not provide notice to the chief election official of the State
under paragraph (1) before bringing a civil action under
paragraph (2).
(c) Attorney's Fees.--In a civil action under this section,
the court may allow the prevailing party (other than the United
States) reasonable attorney fees, including litigation
expenses, and costs.
(d) Relation to Other Laws.--(1) The rights and remedies
established by this section are in addition to all other rights
and remedies provided by law, and neither the rights and
remedies established by this section nor any other provision of
this Act shall supersede, restrict, or limit the application of
the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.).
(2) Nothing in this Act authorizes or requires conduct that
is prohibited by the Voting Rights Act of 1965 (42 U.S.C. 1973
et seq.).
SEC. 12. CRIMINAL PENALTIES.
A person, including an election official, who in any
election for Federal office--
(1) knowingly and willfully intimidates, threatens,
or coerces, or attempts to intimidate, threaten, or
coerce, any person for--
(A) registering to vote, or voting, or
attempting to register or vote;
(B) urging or aiding any person to register
to vote, to vote, or to attempt to register or
vote; or
(C) exercising any right under this Act; or
(2) knowingly and willfully deprives, defrauds, or
attempts to deprive or defraud the residents of a State
of a fair and impartially conducted election process,
by--
(A) the procurement or submission of voter
registration applications that are known by the
person to be materially false, fictitious, or
fraudulent under the laws of the State in which
the election is held; [or]
(B) in the case of an officer or employee of
the executive branch, providing material
assistance to a noncitizen in attempting to
register to vote or vote in an election for
Federal office;
(C) registering an applicant to vote in an
election for Federal office who fails to
present documentary proof of United States
citizenship; or
[(B)] (D) the procurement, casting, or
tabulation of ballots that are known by the
person to be materially false, fictitious, or
fraudulent under the laws of the State in which
the election is held,
shall be fined in accordance with title 18, United States Code
(which fines shall be paid into the general fund of the
Treasury, miscellaneous receipts (pursuant to section 3302 of
title 31, United States Code), notwithstanding any other law),
or imprisoned not more than 5 years, or both.
* * * * * * *
MINORITY VIEWS
REPUBLICANS ARE PLANNING TO UNDERMINE THE 2024 ELECTION
The clear purpose of H.R. 8281 is to prime the American
people to question the outcome of the 2024 election. In 2020,
President Trump and his allies tried to subvert the outcome of
the presidential election by spreading numerous lies that the
election had been tainted by widespread fraud and
irregularities--claims that led to the deadly January 6, 2021,
attack on the Capitol.\1\ Indeed, one of the leaders of the
effort to subvert the election in Congress was now-Speaker Mike
Johnson, who led 126 of his Republican colleagues in filing an
amicus brief that would have, if successful, disenfranchised
millions of Americans and broken the back of American
democracy.\2\ But in 2020, Republicans' attempts to overturn
the election, while profoundly damaging, were unsuccessful.
---------------------------------------------------------------------------
\1\See generally Final Report, House Report 117-663, Select
Committee to Investigate the January 6th Attack on the United States
Capitol, 117th Cong. (2nd Sess. 2022).
\2\Andrew Solender, 126 House Republicans Now Support Lawsuit To
Overturn Election In Updated Brief, Forbes (Dec. 11, 2020), https://
www.forbes.com/sites/andrewsolender/2020/12/11/126 -house-republicans-
now-support-lawsuit-to-overturn-election-in-updated-brief/
?sh=7daf8913e5db.
---------------------------------------------------------------------------
MAGA extremists are hoping to be more successful this
November. President Trump and his allies in Congress, including
Speaker Johnson and Committee Republicans, are laying the
groundwork to contest the 2024 election--beginning by echoing
disproven claims about fraudulent noncitizen voting. Despite
Republican allegations, there is absolutely no evidence of any
widespread noncitizen voting in federal elections.\3\ Speaker
Johnson has himself admitted this, saying that claims of
noncitizen voting in federal elections was not ``provable.''\4\
But in the face of all evidence,\5\ Republicans are intent on
creating a problem where there is none, so Americans lose
confidence in the security of American elections. By so doing,
they hope Americans will be more likely to believe future
baseless claims of massive fraud so that Republicans' attempts
to overturn the 2024 election will be more likely to succeed.
---------------------------------------------------------------------------
\3\Aaron Blake, Mike Johnson's telling comment on GOP's (lack of)
voter-fraud evidence, Wash. Post (May 9, 2024), https://
www.washingtonpost.com/politics/2024/05/09/republican-bogus-claims-
vote-fraud/.
\4\Scott Wong et al., Speaker Mike Johnson and Trump allies who
tried to overturn the 2020 election roll out voting `integrity' bill,
NBC News (May 8, 2024), https://www.nbcnews.com/poli
tics/congress/speaker-johnson-trump-allies-tried-overturn-2020-
election-roll-new-vot-rcna151256.
\5\For further information on the lack of widespread noncitizen
voting in federal elections, see A Solution in Search of a Problem:
Noncitizen Voting Almost Never Happens below.
---------------------------------------------------------------------------
A SOLUTION IN SEARCH OF A PROBLEM: NONCITIZEN VOTING ALMOST
NEVER HAPPENS
Noncitizens are not voting in state or federal elections--
certainly not at any scale significant enough to sway any
American election--and there is overwhelming evidence showing
as much. First and foremost, it is already illegal for
noncitizens to vote in federal elections. Federal law declares
that it is ``unlawful for any alien to vote in any election
held solely or in part for the purpose of electing a candidate
for the office of President, Vice President, Presidential
elector, Member of the Senate, Member of the House of
Representatives, Delegate from the District of Columbia, or
Resident Commissioner.''\6\
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\6\18 U.S.C. Sec. 611.
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Further, not only is it already illegal for noncitizens to
vote in federal elections, federal law also makes the ``the
procurement or submission of voter registration applications
that are known by the person to be materially false,
fictitious, or fraudulent''\7\ a felony that could result in a
five-year prison term and subsequent deportation. The processes
in place to protect American elections are both sturdy and
comprehensive.
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\7\52 U.S.C. Sec. 20511.
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Why would a noncitizen ``risk everything--[their] freedom,
[their] life in the United States, [their] ability to be near
[their] family--just to cast a single ballot?''\8\ Quite
simply, they would not: Every reliable, verifiable study ever
done on the topic has proved that noncitizen voting in state
and federal elections is ``vanishingly rare.''\9\ Indeed,
``[t]he idea that large numbers of people who are in this
country illegally would take the risk of being detected to cast
a single vote in a presidential election is nonsensical on its
face.''\10\ As Michael Waldman, Committee Democrats' witness
for the May 16, 2024, hearing on the Safeguard American Voter
Eligibility Act (``SAVE Act''), has compellingly written:
---------------------------------------------------------------------------
\8\Sean Morales-Doyle, Noncitizens Are Not Voting in Federal or
State Elections--Here's Why, Brennan Ctr. for Justice (Apr. 12, 2024),
https://www.brennancenter.org/our-work/analysis-opinion/noncitizens-
are-not-voting-federal-or-state-elections-heres-why.
\9\Id.
\10\Blake, supra note 3.
For starters, let's say it as clearly as possible: it
is already illegal for noncitizens to vote. They are
prohibited from voting in federal elections and state
elections in every state. It is very, very illegal.
There are strong penalties in the law. And states have
strong systems in place to ensure that noncitizens
don't vote--whether on purpose or, as may be more
likely, because they are misinformed about their
eligibility.\11\
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\11\Michael Waldman, Noncitizen Voting Is Already Illegal--and
Vanishingly Rare, Brennan Ctr. for Justice (Apr. 17, 2024), https://
www.brennancenter.org/our-work/analysis-opinion/noncitizen-voting-
already-illegal-and-vanishingly-rare.
A study by the Brennan Center found that suspected cases of
noncitizen voting in state or federal elections--including
those that have not been proven in a court of law--account for
0.0001 percent of all ballots cast. The conservative Cato
Institute has found that ``noncitizens don't illegally vote in
detectable numbers.''\12\ Whit Ayres, a longtime Republican
pollster, has admitted ``there is no evidence of widespread
voter fraud that would influence the results of an
election.''\13\ And as noted above, even Speaker Johnson
conceded that there is no evidence of noncitizen voting, an
admission The Washington Post called a ``telling comment.''\14\
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\12\Alex Nowrasteh, Noncitizens Don't Illegally Vote in Detectable
Numbers, Cato Inst. (Nov. 25, 2020), https://www.cato.org/blog/
noncitizens-dont-illegally-vote-detectable-numbers.
\13\Colby Itkowitz et al., Noncitizen voting is extremely rare.
Republicans are focusing on it anyway., Wash. Post (May 9, 2024),
https://www.washingtonpost.com/politics/2024/05/09/noncitizen-voting-
trump-johnson-elections/.
\14\Blake, supra note 3.
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Further, evidence for illegal registration and voting would
be exceptionally easy to find, compared to almost every other
crime--just by attempting to register to vote, a noncitizen
would create a paper trail of criminal activity for state and
federal authorities.\15\ Indeed, officers at the United States
Citizenship and Immigration Services specifically investigate
possible past registration and voting during the naturalization
process.\16\ Republicans' claims about noncitizen voting ignore
the facts and defy common sense.
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\15\Morales-Doyle, supra note 8.
\16\Id.
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Republicans have no real interest in preventing noncitizen
voting in state and federal elections because there is no
problem with noncitizens voting in elections. H.R. 8281 is
instead part of Republicans' evolving election denialism, a
spectacle as they shift their focus away from November 2020 and
toward November 2024.
THE SAVE ACT OVERVIEW
On Wednesday, May 8, 2024, Speaker Johnson joined
Congressman Chip Roy (R-TX) and Senator Mike Lee (R-UT) at a
press conference on the Capitol steps to announce the
introduction of the SAVE Act,\17\ a bill that would require
voters to provide documentary proof of citizenship (``DPOC'')
when registering to vote in federal elections. They were joined
at this press conference by noted election deniers such as
Cleta Mitchell, Ken Cuccinelli, and Stephen Miller. This press
conference followed the April 12, 2024, press conference held
by Speaker Johnson and former President Trump at the Mar-a-Lago
country club calling for (redundant) legislation meant to
prevent noncitizens from voting in federal elections.\18\
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\17\Other attendees included Congressman Brian Babin (R-TX),
Congressman Pat Fallon (R-TX), Congressman Randy Weber (R-TX), and
conservative activists.
\18\Lisa Mascaro & Jill Colvin, Trump gives support to embattled
Speaker Mike Johnson at pivotal Mar-a-Lago meet, AP (Apr. 12, 2024),
https://apnews.com/article/trump-speaker-johnson-maralago-congress-
c6eaace204882df054795cf70a5fe60a.
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The SAVE Act would create extreme DPOC requirements
nationwide, burdening every potential voter and particularly
affecting people who have difficulty obtaining the required
DPOC, including married women who have changed their names,
students, the elderly, lower income people, members of Tribal
nations, and naturalized citizens. The bill's requirements
would be the most severe voter identification or proof of
citizenship law in the nation, even more burdensome than
Arizona's infamous DPOC law that has been subjected to repeated
successful federal lawsuits.\19\ The bill would do all of this
to prevent a problem that does not exist--an entirely
pretextual enterprise to frighten American voters and set the
stage for a January 6 redux.
---------------------------------------------------------------------------
\19\See, e.g., Arizona v. Inter Tribal Council of Arizona, 570 U.S.
1 (2013); Mi Familia Vota v. Fontes, _F.Supp.3d., _2024 WL 862406 (D.
Ariz. 2024); Consent Decree, ECF No. 20, Lulac v. Regan, No. 2:17-cv-
04102(D. Ariz. June 4, 2018), https://campaignlegal.org/sites/default/
files/Consent%20Decree.pdf.
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A. Acceptable Forms of Documentary Proof of Citizenship
This bill would amend the National Voter Registration Act
(``NVRA''), which currently prohibits states from requiring
DPOC from applicants that register under the NVRA's
registration provisions,\20\ to mandate states require
Americans to provide DPOC to register to vote. The following
forms ofDPOC would be allowable:\21\
---------------------------------------------------------------------------
\20\See Arizona v. Inter Tribal Council of Arizona, 670 U.S. 1, 20
(2013); Fish v. Schwab, 957 F.3d 1105, 1136 (10th Cir. 2020); Fish v.
Kobach, 840 F.3d 710, 750 (10th Cir. 2016).
\21\H.R. 8182, 118th Cong. (2nd Sess. 2024).
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1. a form of photo identification consistent with the
REAL ID Act of 2005 that indicates the applicant is a
citizen;\22\
---------------------------------------------------------------------------
\22\This requirement is bizarre; identification issued pursuant to
REAL ID does not list a person's citizenship status, and indeed REAL
IDs are available to noncitizens.
---------------------------------------------------------------------------
2. a valid United States passport;
3. a military identification card coupled with a
military service record showing the applicant's place
of birth was in the United States;\23\
---------------------------------------------------------------------------
\23\Tracking down and submitting a military service record is
likely a significant burden for military voters.
---------------------------------------------------------------------------
4. a valid government-issued photo identification
card from a federal, state, or Tribal government
showing the applicant's place of birth was in the
United States;\24\
---------------------------------------------------------------------------
\24\Apart from passports, most government-issued forms of
identification do not list places of birth--merely current residence.
---------------------------------------------------------------------------
5. a valid form of photo identification issued by a
federal, state, or Tribal government (such as a
standard driver's license) that does not comport with
(4) above, so long as it is coupled with:
a. a certified birth certificate (with
several qualifiers);
b. an extract from a United States hospital
record of birth showing the applicant's place
of birth in the United States;
c. a final adoption decree showing the
person's name and that their place of birth was
within the United States;
d. a Consular Report of Birth Abroad or a
Report of Birth of a United States citizen
issued by the Secretary of State;
e. a Naturalization Certificate or
Certificate of Citizenship issued by the
Secretary of Homeland Security; or
f. an American Indian Card issued by the
Secretary of Homeland Security with the
classification ``KIC.''\25\
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\25\The Kickapoo Act of 1983 enabled Mexican-born members of the
Kickapoo Tribe of Oklahoma and the Kickapoo Traditional Tribe of Texas
to acquire United States citizenship and free passage over the United
States-Mexico border through a special naturalization process. The law
did not provide for issuance of Certificate of Citizenship to
individuals who acquired citizenship through the Kickapoo Act, however,
but rather provided for a small, laminated card that included a
classification code ``KIC.'
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The SAVE Act would not allow states to accept or process a
voter registration application without first receiving the
required DPOC.
B. Amending the Requirements of the National Mail Voter Registration
Form
The SAVE Act would disallow states from accepting the
NVRA's mail voter registration application unless the applicant
presents DPOC in person at the office of an appropriate
election official. If a state received an otherwise completed
voter registration application without DPOC, the state would be
required to notify the applicant that additional DPOC is
needed. By requiring people to travel to the office of an
election official, this provision of the SAVE Act would
essentially gut the utility of the mail voter registration
application.
The SAVE Act would also require individuals to bring DPOC
to vote if they live in a state with same-day voter
registration and intend on both registering to vote and casting
a ballot at the same time. This would pose a significant burden
to many voters, most of whom do not show up to their polling
places with their passports or birth certificates.
C. Process for those without documentary proof of citizenship
The SAVE Act creates a process for individuals without DPOC
so unclear it would likely be unworkable. The bill states that
the Election Assistance Commission shall provide guidance for
states to accept voter registrations from individuals who lack
DPOC, but that the process shall include an applicant (1)
signing an attestation under penalty of perjury that they are a
United States citizen, and (2) submitting ``such other evidence
to the appropriate State official demonstrating that the
applicant is a citizen of the United States.'' What this
``other evidence''--that is not already included in the list of
acceptable DPOC--could be is unclear.
Further, upon receiving the signed attestation and the
additional, undefined proof of citizenship, the SAVE Act would
require election officials to make their own determination as
to whether the applicant may properly register to vote--and
then sign an affidavit themselves explaining their basis for
allowing the applicant to register to vote.
D. State Coordination with Federal Agencies
A portion of the SAVE Act includes much of the substance of
the Protecting American Voters Act (H.R. 3162), also sponsored
by Congressman Roy, which would require the Secretary of
Homeland Security and the Commissioner of the Social Security
Administration to provide any state election official with
``such information as may be necessary'' for the official to
verify that a potential voter is in fact a citizen--a process
that would be rife with flaws and overburden two already-taxed
agencies. H.R. 3162 was previously marked up by the Committee
on November 20, 2023.
The Social Security Administration (``SSA'') has previously
explained that sharing this information for voter registration
purposes is non-mission work for SSA and would divert critical
agency resources needed to administer SSA's programs.
Additionally, SSA is not the authoritative source for U.S.
citizenship status--SSA's citizenship data is a snapshot in
time and many people may have changed status (become citizens)
and may not have notified SSA.
E. Private Right of Action
The SAVE Act would amend the NVRA's private right of action
contained in 5.2 U.S.C. 20510(b)(l) to allow for suits against
``an election official who registers an applicant to vote in an
election for Federal office who fails to present documentary
proof of United States citizenship.'' This would undoubtably
result in an avalanche of litigation against election officials
in blue states, where the former president has repeatedly
alleged noncitizen voting is rampant.
F. Criminal Penalties Against Election Officials
The SAVE Act would amend the NVRA's criminal penalties
contained in 52 U.S.C. 20511 to subject any election official
who ``register[s] an applicant to vote in an election for
Federal office who fails to present documentary proof of United
States citizenship'' to hefty criminal fines and up to five
years in federal prison. Not only is this a blatant attack on
election officials, but the threat of severe criminal penalties
would almost certainly make election officials wary to allow
applicants who do not have DPOC to make use of the already
confusing alternative.
COMMITTEE REPUBLICANS' ELECTIONS CLAUSE HYPOCRISY
Committee Republicans--who have repeatedly emphasized their
belief in the constitutional primacy of state power over
federal elections--have done an about-face on their view on the
Elections Clause. Time and again, Committee Republicans have
declared their unwavering loyalty to the idea that ``the
Constitution grants the Congress a purely secondary role to
alter or create election laws only in the extreme cases of
invasion, legislative neglect, or obstinate refusal to pass
election laws.''\26\ Many of the Republican member of this
Committee have made statements akin to this at several hearings
this Congress, and indeed they repeated this claim in the text
of their American Confidence in Elections Act.\27\ They have
repeated their enduring belief that congressional action
related to our election system is an inappropriate use of
power.
---------------------------------------------------------------------------
\26\Congressman Rodney Davis (R-IL), The Elections Clause: States'
Primary Constitutional Authority Over Elections, Comm. H. Admin. (Aug.
12, 2021), https://cha.house.gov/_cache/files/
8/b/8b7e408f-b0b8-427f-85af-261bab2666cc/
0620A081A2ADA16BF06CD47CB190DC13.report-the -elections-clause-states-
primary-constitutional-authority-over-elections-aug-11-2021.pdf.
\27\H.R. 4563, 118th Cong. Sec. 101(b)(1) (1st Sess. 2023) (``The
Constitution reserves to the States the primary authority and the duty
to set election legislation and administer elections--the ``times,
places and manner of holding of elections''--and Congress' power in
this space is purely secondary to the States' power and is to be
employed only in the direst of circumstances.'').
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It is curious, then, that when filing the SAVE Act,
Congressman Roy cited the Elections Clause as the bill's
primary constitutional authority.\28\ As discussed above, the
SAVE Act would be a dramatic expansion of federal power over
state election officials, well beyond the scope of the limited
congressional authority Committee Republicans claim to believe
in. Consequently, in the face of the sweeping, discriminatory
SAVE Act--which would impose significant new requirements for
states and would subject state employees to federal criminal
penalties--Committee Republicans' alleged belief in the primacy
of state power over federal elections rings hollow. It is clear
that Republicans' view of the Elections Clause is not
inviolable--it is mercurial, adapting to the needs of the
Republican talking point of the day.
---------------------------------------------------------------------------
\28\H.R. 8281--Constitutional Authority and Single Subject
Statements, CONGRESS.GOV (May 7, 2024), https://www.congress.gov/bill/
118th-congress/house-bill/828l?q=%7B%22search%22%3A
%22hr+8281%22%7D&s=2&r=l.
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Committee Democrats, by contrast, understand that the
intent of the framers of the Constitution was for Congress to
have plenary authority over the election of its members.
Indeed, when eloquently arguing on behalf of constitutional
ratification, Alexander Hamilton made quite clear the ``plain
proposition, that every government ought to contain in itself
the means of its own preservation.''\29\ The Supreme Court has
also long upheld Congress's power under the Elections Clause--
since Ex parte Siebold, 100 U.S. 371 (1879), the Supreme Court
has repeatedly held that Congress's power over congressional
elections is ``paramount.''\30\ Justice Scalia, writing for the
majority in Arizona v. Inter Tribal Council of Arizona, 570
U.S. 1 (2013), reaffirmed the ``broad'' and ``comprehensive''
scope of the Congress' authority under the Elections
Clause.\31\ That Committee Republicans deny these facts in
relation to Democratic bills, but quietly adopt this belief for
the SAVE Act, is pure hypocrisy.
---------------------------------------------------------------------------
\29\The Federalist No. 59 (Alexander Hamilton).
\30\The Elections Clause: Constitutional Interpretation and
Congressional Exercise: Hearing Before the H. Comm. on House Admin.,
117th Cong. 1 (2021) (written testimony on Daniel P. Tokaji).
\31\Id.
Joseph D. Morelle
Ranking Member.
[all]