THE The House of Representatives led by Les Républicains is adopted On April 10, 2025, the JUMP – or safeguard the law. The bill would make the vote more difficult for tens of millions of Americans.
The Save Act would oblige anyone who registers to vote in the federal elections to “provide documentary evidence of American citizenship” in person, as A real identity document or a passport.
The house has already adopted an identical bill In July 2024Also according to partisan parties, the GOP largely supporting legislation. At that time, the Senate killed the bill. With a Senate now controlled by the GOP and a republican in the White House, the Save Act could become the law before the end of 2025.
Voting experts and advocacy organizations have detailed how legislation could remove the vote. Partly, they say that this would particularly create barriers in low -income and minority communities. The people of these communities often do not have acceptable forms of identification under the Save Act For various reasonsincluding socioeconomic factors.
For the moment, at least 9% of American citizens of the voting age – approximately 21 million people – do not even have driver’s licensesNot to mention the proof of citizenship. Despite this, many legislators support the bill as a means of Eliminate the voting of non-citizens in the elections.
As a legal researcher who studies, among other things, foreign interference During the electionsI find considerations on the potential effects of the significant safeguard act, especially given As it is rare that a non-city really votes in the federal elections.
However, it is just as crucial to consider a more fundamental question: is the Save Act even constitutional?
How the safeguard law could modify the voting requirements
The Prohibition Protection Act Electoral officials of the State to register a person to vote in the federal elections unless this person “provides documentary evidence of citizenship in the United States”.
A acceptable forms of evidence for registration would include a real identity card, an American passport or an American military identity card. A regular driving license would only be enough unless it shows that the applicant was born in the United States, or if it is accompanied by a birth certificate or a naturalization certificate.
Thus, if the safeguard law becomes the law, if a person is 18 years old or if he moves between the states and wishes to register to vote in the federal elections in her new house, she would probably be repressed if she has no easily available documents. At best, they could always fill out a registration form, but should send acceptable evidence of citizenship.
For people married to surnames changed, among others, Questions remain On the question of whether the birth certificates could even count as proof of citizenship acceptable to them.
The Constitution says little about the voting rights
Despite the national conversation that the Save Act has triggered, it is not difficult to know if Congress even has the power to adopt it. This is the key constitutional question.
The American Constitution does not impose any requirement for citizenship When it comes to voting. The original text of the Constitution, in fact, said very little about the right to vote. It is only when legislators have adopted subsequent modificationsFrom the civil war in the 1970s, that the Constitution explicitly prohibits voting laws which discriminate due to race, sex or age.
Aside from these amendmentsThe Constitution is largely silent as to who can vote.
Who decides if someone is qualified to vote? Regardless of the election, the answer is always the same – states.
Indeed, by constitutional conception, states are responsible for setting electoral eligibility conditions – a product of our federalist system. For national and local elections, The 10th amendment subsidies sets out the power to regulate their internal elections as they see fit.
States can also decide which can vote in the federal elections, which include the presidential elections and the congress.
Regarding the presidential elections, for example, the states have – As I have already written – exclusive power under the Constitution Voter clause To decide how to lead presidential elections within their borders, especially which can vote in them.
States exercise similar authority in the elections of the Congress. Namely, according to Article I of the Constitution And the constitution 17th amendmentIf someone can vote in the legislative elections of his state, he also has the right to vote during his elections at the Congress.
Conversely, the Constitution provides that the Zero Authority congress to govern the conditions of eligibility of voters during the federal elections. Indeed, in the 2013 Decision of the United States Supreme Court on the Arizona c. Inter Tribal Council Case, the court said that nothing in the Constitution “does not lend itself to the opinion that the voting qualifications during the federal elections should not be fixed by the congress”.
Is the Save Act constitutional?
The safeguard law has a constitutional dilemma. By obliging individuals to show documentary evidence of American citizenship to register in the federal elections, the Save Act implicitly says that someone must be an American citizen to vote in the federal elections.
In other words, the Congress would establish a qualification to vote, a power that the Constitution leaves exclusively to the States.
Indeed, while all states currently limit the voting rights to citizens, the legal vote of non-citizens is not unprecedented. As multiple scholar notedAt least 19 states have extended the voting rights to free male “inhabitants”, including non-citizens, from the foundation of our country until the 19th century.
Today, more than 20 municipalities across the country, as well as the District of Columbia, Authorize permanent non -citizens To vote in local elections.
Any state today could also extend the right to vote in state and federal elections to non -citizen permanent residents. This is in their constitutional prerogative. And if that were to happen, there could be a conflict between the laws on the eligibility of voters of this state and the law on safeguard.
Normally, when state and federal laws face The supremacy clause of the Constitution requires federal law to prevail.
However, in this case, where the Congress does not have the real power to implement the qualifications of voters, the law on safeguard seems to have no constitutional legs on which to stand.
Reconcile the save act with the constitution
So why 108 American representatives Sponsored a bill that probably goes beyond the powers of the congress?
Politics, of course, plays a role here. Namely, non -citizen vote is a major concern Among republican politicians and voters. Each co -gorer of the law on safeguard is republican, just like all four except. 220 American representatives who voted to adopt it.
Regarding the constitutionality of the Save Act, however, the supporters simply affirm that Congress acts in its field.
More specifically, many supporters have cited the Constitution Election clausewhich gives the congress the power to regulate the “times, places and ways” of the elections of the congress, as support for this assertion. Senator Mike Lee, for example, explicitly referenced The election clause during the defense of the Save Act earlier in 2025.
But the elections clause only gives congress the power to regulate electoral procedures, not the qualifications of voters. The Supreme Court explicitly declared it in the decision of the prohibited council.
Congress can, for example, require that states adopt a uniform federal Voter registration formAnd even include a question of citizenship on the said form. What he cannot do, however, is to implement a non-negotiable mandate that effectively says to the states that they can never allow any non-citizen to vote in a federal election.
For the moment, the Save Act is simply legislation. If the Senate will adopt it, President Donald Trump will certainly sign it, given, among other factors, His decree of March 2025 That said, potential voters must show proof of citizenship before registering to vote in the federal elections. Once this happens, the courts will have to count with the legitimacy of the law on safeguard in the constitutional conception of the country.
John J. Martin Is assistant professor of research law at the University of Virginia.
This article is republished from the conversation.
