The following is a guest post from Wendy Weiser & Andrew Garber:
Last month, congressional Republicans pledged to fast-track the SAVE Act (H.R. 22), a bill that would require all Americans to provide a birth certificate, passport, or one of a few other citizenship documents every time they register or re-register to vote. If enacted, the bill would devastate voter registration while disenfranchising tens of millions of eligible American citizens.
More than 21 million American citizens don’t have documentary proof of citizenship readily available, according to previously-published survey data. But the SAVE Act would likely adversely affect many, many more Americans than these data suggest. Many might not have noticed how broadly the bill could apply; its show-your-papers requirement is not just limited to new registrations but rather applies to every “application to register to vote,” which may not exclude re-registrations and changes of address. Tens of millions of Americans register or re-register between every federal election.
The SAVE Act Would Upend Most Methods of Voter Registration
What is more, the bill would obliterate or upend longstanding and popular methods of voter registration – including registration by mail, voter registration drives, online voter registration, and automatic voter registration. This would apply to all voters, regardless of whether they have the required documentation.
Here is the relevant bill text:
- Section 2(b)(3) mandates that states “shall not accept and process an application to register to vote . . . unless the applicant presents documentary proof of United States citizenship with the application.” Sections 2(c)(4) and 2(e)(1)(B) make clear that this requirement applies to registration at DMVs and voter registration agencies.
- Section 2(f)(3) similarly provides that states “may not register an individual to vote . . . unless at the time the individual applies to register to vote, the individual provides documentary proof of United States citizenship.”
- Section 2(a) defines “documentary proof of United States citizenship” but is silent on whether photocopies or electronic records of those documents would comply. For reasons cited below, there is a significant risk that they would not be accepted.
- For people registering to vote using the national mail voter registration form, section 2(d)(4) expressly requires them to present documentary proof of citizenship “in person to the office of the appropriate election official.” That must be done “not later than the deadline provided by State law for the receipt of a completed voter registration application for the election.” In other words, every individual registering by mail would be required to show up in person at an election official’s office with satisfactory documents before the registration deadline.
- Section 2(j)(3) creates criminal penalties for election officials who register “an applicant to vote in an election for Federal office who fails to present documentary proof of United States citizenship.” This would undoubtedly deter election officials from adopting a flexible or liberal reading of the documentation requirements (including whether to accept a registration or re-registration from someone who has not produced the documents in person or whether to allow alternative methods of proving citizenship under section 2(f) beyond the “documentary proof” required by this provision).
Taken together, these provisions would upend or undermine almost every method of voter registration. They would functionally eliminate mail registration by requiring mail registrants to produce citizenship documents in person to an election official before the registration deadline. They would also abolish many or all voter registration drives and online voter registration systems – which are typically treated like mail registration. And they would severely hamper automatic voter registration, as many of those transactions don’t occur in person while someone has citizenship documents with them. Address changes could be significantly impacted, too: instead of your registration automatically updating when, for instance, you change your driver’s license address online, you might have to bring your passport or birth certificate to an election agency office to update your voter registration.
Nothing we have found in the SAVE Act addresses these concerns. The bill consistently cuts in favor of in-person registration at a select few places for your registration to count. And that would likely be the case every time you need to update your registration.
The SAVE Act’s Documentation Requirement Could Exclude Tens of Millions of Americans
Beyond the impact on voter registration methods, the SAVE Act would exclude millions of eligible American citizens who do not have ready access to the documentation it requires. According to a survey conducted by the Brennan Center and several partners, more than 9 percent of American voting-age citizens, or 21.3 million people, don’t have a passport, birth certificate, or naturalization papers readily available. Voters of color (11% of whom lacked access to citizenship documents as compared to 8% of white Americans), voters who change their names (most notably, married women), and lower income voters would be most significantly affected.
In addition, as our colleagues Owen Bacskai and Eliza Sweren-Becker catalogued, proof of citizenship requirements in Arizona and Kansas blocked tens of thousands of citizens from registering. Kansas’s show-your-papers policy was struck down as unconstitutional, and recently prompted criticism even from Kansas’s Republican secretary of state. Those state policies are generally less onerous than the SAVE ACT. (In Arizona, for instance, most voters do not have to produce citizenship documents because the state accepts driver’s license numbers from most voters as proof of citizenship—something that would not be allowed under the SAVE Act.)
Contrary to what some have suggested, the SAVE Act does not contain a meaningful failsafe provision that would allow those without physical documentation to register. While the bill includes a provision (Section 2(f)) requiring states to establish a failsafe process for those without citizenship documents to demonstrate their citizenship through “other evidence” and swear an affidavit, that option is vague and severely undercut by the provision (Section 2(j)(3)) making it a crime for election officials to register any applicant who does not “present documentary proof of United States citizenship.” Many election officials would be wary of risking criminal prosecution for running afoul of this provision.
In short, the potential disenfranchising consequences of the SAVE Act are substantial.
Tuesday, January 28 
