Harder to vote

Republicans threaten a government shutdown unless Congress makes it harder to vote

The exhausting dance that precedes every single government funding battle has begun.

by Ian Millhiser

It’s that time again. The last act of Congress funding the federal government expires on September 30. So, unless Congress passes new funding legislation by then, much of the government will shut down.

House Speaker Mike Johnson (R-LA), egged on by the House Freedom Caucus and by former President Donald Trump, reportedly wants to use this deadline to force through legislation that would make it harder to register to vote in all 50 states.

Johnson plans to pair a bill funding the government for six months with a Republican bill called the “Safeguard American Voter Eligibility Act” or “SAVE Act,” that would require new voters to submit “documentary proof of United States citizenship,” such as a passport or a birth certificate, in order to register to vote.

There is no evidence that noncitizens vote in US federal elections in any meaningful numbers, and states typically have safeguards in place to prevent them from doing so. Georgia Secretary of State Brad Raffensperger, a Republican, for example, claims to have identified 1,634 “potential noncitizens” who attempted to register during a 15-year period. But these possible noncitizens were caught by election officials and were never registered. In 2020, nearly 5 million Georgians voted in the presidential election.

More broadly, according to the Bipartisan Policy Center, “illegal registration and voting attempts by noncitizens are routinely investigated and prosecuted by the appropriate state authorities, and there is no evidence that attempts at voting by noncitizens have been significant enough to impact any election’s outcome.”

While noncitizen voting — which is, of course, illegal — has never been proven to have affected an election, there is evidence that the SAVE Act could have an impact on elections. That much is clear from Arizona, which already has a SAVE Act-like regime. Data from Arizona suggests the state’s law has made it slightly harder for people of color, a group that skews Democratic, to vote. And at least one analysis of Arizona voter data suggests that the SAVE Act could suppress voter registration among another group that tends to vote for Democrats: college students. So the bill could make it slightly more difficult for Democrats to win elections.

That said, the SAVE Act law does have a vague provision allowing voters who “cannot provide” the required documentation to submit other evidence that they are a citizen, and it provides that state or local officials “shall make a determination as to whether the applicant has sufficiently established United States citizenship.”

It’s unclear what, exactly, that means.

Notably, the SAVE Act would take effect immediately if enacted by Congress, and it imposes significant new administrative burdens on state and local election offices. So, if the law did take effect in the two months before a presidential election, it could potentially throw that election into chaos.

Realistically, that outcome is unlikely. Axios reports that Senate Minority Leader Mitch McConnell (R-KY) is opposed to making continued funding for the US government contingent on passing the SAVE Act. Most Democrats and President Joe Biden also oppose the bill.

Still, the battle over the SAVE Act could put the US in danger of a government shutdown. And though it is unlikely to become law in the next two months, it is likely to be on the short list of bills that Republicans will be eager to turn into law should they prevail in this November’s election.

How would the SAVE Act actually impact US elections?

If the SAVE Act became law, it would likely only have a marginal impact on election results — although even a modest shift in who is allowed to vote could potentially flip very close elections, particularly in swing states. On its face, the bill addresses a non-problem — again, there are no legitimate concerns about noncitizen voting in the United States. And most voters do have some documentation they could use to register under the SAVE Act.

Still, Arizona offers a useful window into what voting might be like under the SAVE Act. In 2004, the state enacted a SAVE Act-like law requiring new voters to submit documentary proof of citizenship to register. This law, however, conflicts with a federal law which requires states to register voters who submit a standardized federal form. In 2013, the Supreme Court ruled that Arizona could not prevent voters who register using this form from voting in federal elections.

Arizona, however, responded to this decision by creating a second-class tier of voters. Arizona voters who submit the federal form without documentary proof of citizenship are allowed to vote in federal elections (for Congress and the president), but not in state elections.

Data from Arizona suggests that non-white voters (who tend to prefer Democrats to Republicans) are more likely to be registered as federal-only voters than white voters. But college students appear to be hardest hit by Arizona’s two-tiered regime.

A report by Votebeat, a news outlet that reports on election administration, found that most Arizona voting precincts have fewer than a dozen total federal-only voters. But, “of the dozen outliers with more than 300 federal-only voters,” Votebeat reports that “all but one are located at least partly on a college campus.” The one exception was a Phoenix precinct that includes a homeless shelter.

This conclusion is intuitive. College students who leave home to earn their degree often do not bring their passport or birth certificate to school with them, so they are unable to submit it when they register to vote. (People without permanent housing are also likely not to have immediate access to these documents because they do not have a home to store them in.)

In a close election, a law disenfranchising many college students could be dispositive.

In the razor-thin 2000 election, for example, official tallies showed that President George W. Bush won the crucial state of Florida by 537 votes. Meanwhile, the University of Florida alone enrolls nearly 35,000 undergraduates.

So, while the SAVE Act wouldn’t do much to address the fake problem of noncitizen voting, it would have at least some impact on US elections.