The SAVE America Act

I have been writing for months about cult leader, convicted felon, and failed President Donald Trump's intention to interfere in the November midterm elections and, likely, any subsequent elections. Trump's motivation is easy to understand. He is currently running an authoritative regime that is almost as much a crime syndicate as it is a government. He is completely unhindered by the Republican-controlled Congress. However, the likely Democratic takeover of one or both chambers of Congress in November would bring Trump's rogue regime to a standstill. Suddenly, administration officials would be facing hearings and potential impeachment, there would be restrictions on administration behavior in spending bills, and, worst of all for Trump, he could no longer rely on Congress to be little more than a rubber stamp. So important are the midterms, and so likely are Democratic chances of success, that Trump has become increasingly desperate and increasingly obvious in his attempts at election interference. The most prominent attempt at election interference at the moment is the SAVE America Act, a bill that has passed the U.S. House of Representatives that places restrictions on voter registration and voting. Moreover, the bill requires states to submit their voter data to the Trump administration so that the government can identify ineligible voters who must be removed from the rolls. The SAVE America Act would give the federal government unprecedented control of the elections and provide Trump with the tools that he needs to affect the election outcome.

The SAVE America Act has passed the U.S. House of Representatives, almost completely on party lines. In the Senate, the bill likely has majority support. However, the Democrats plan to filibuster the bill, and the Senate lacks sufficient votes to invoke cloture. As a result, some Republicans are considering rule changes to weaken or eliminate the filibuster. Senator Mike Lee, for instance, is arguing for a so-called "talking filibuster," which would require those supporting the filibuster to continually speak or lose the floor and allow the bill to be considered. Most Senators, including Republicans, oppose changes to the current filibuster rules. However, Trump is putting them under tremendous pressure to pass the bill, even if that means eliminating the filibuster. While removing the filibuster would help Republicans in the short term, many recognize that Democrats may soon take control of the Senate, and the filibuster would then be used by Republicans. Trump, however, likely does not foresee a future in which Democrats have a Senate majority because he is actively working to make it impossible for that to happen. The bottom line is that, despite the lack of enough votes to overcome a filibuster, there is still a strong possibility that the SAVE America Act might pass the Senate. Senate Majority Leader John Thune has said that the Senate will take up the bill next week.

There are three primary components to the SAVE America Act, each dangerous in its own way. These are 1) identification requirements for voter registration; 2) identification requirements for voting; and, 3) requirements for states to submit voter information to the federal government for "cleansing."

The first part of the SAVE America Act states that:

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.

In short, this means that whether an applicant is registering to vote in person, through the mail, when receiving or renewing a motor vehicle license, or any other means, proof of citizenship must be provided. The problem with this requirement, and the reason that it will create significant hurdles for voter registration, is due to the definition of "documentary proof" of citizenship. The types of identification accepted as proof of citizenship are limited. A Real ID that indicates that the applicant is a citizen is acceptable, but only five states – Michigan, Minnesota, New York, Vermont, and Washington – provide that type of Real ID. In other states, the applicant will also have to provide a birth certificate that matches the name on the Real ID. This presents a problem for the estimated 69 million women whose married name does not match the name on their birth certificates.

A valid U.S. passport is also sufficient, but only about half of Americans have a valid passport. A U.S. military identification card, along with a U.S. military record of service that shows that the applicant was born in the U.S., is also valid. A federal, state, or tribal-issued photo id that shows that the applicant was born in the U.S. will also work. If the id does not show the place of birth, then a birth certificate must also be provided, creating the same problem for those who have changed their names. Birth certificates must also meet a number of requirements that many people's birth certificates may not meet.

It is important to understand that these proof of citizenship requirements are not only for registering to vote for the first time. Anytime a voter registration is modified, such as due to a change of address, the applicant will also have to provide such proof of citizenship.

The problems with these requirements should be obvious, especially for those who do not have passports. There will likely be confusion about what type of proof is required, especially when it comes to Real IDs which many applicants might believe offer proof of citizenship. Again, that is only true in five states. In the case of one of the most popular methods of registering, motor-voter, applicants whose primary interest is getting a driver's license are unlikely to have thought to bring a passport or birth certificate. 

One irony of the proof of citizenship requirement is that it is likely to be more problematic for Republican voters than Democrats. The five states with Real ID that provide proof of citizenship are all Democratic states. Democratic constituencies are more likely to have passports. Conservative women are more likely to have taken their husbands' names. With this in mind, I am not sure why Republican legislators are such strong supporters of the measure. But I guess this is what happens when you turn over your thinking to Trump.

With regard to the requirement to provide a photo id in order to vote, the bill says:

State or local election official may not provide a ballot for an election for Federal office to an individual who desires to vote in person unless the individual presents to the official a valid physical photo identification.

While this paragraph applies to in-person voting, a following paragraph stipulates that copies of valid photo identification be provided when voting by other means. This part may be the least onerous part of the SAVE America Act because the photo id requirements are fairly broad. Acceptable forms of identification include:

1. a valid driver's license
2. a state-issued photo identification
3. a U.S. passport
4. a military identification
5. a photo identification issued by a Tribal government

The most problematic issue with this list is that student IDs are not included. Many college students these days don't bother getting driver's licenses and, instead, rely on student IDs. In addition, several states now allow electronic versions of driver's licenses that can be stored on mobile devices. These electronic licenses probably won't meet the letter of the law that requires "physical" IDs. Moreover, expired IDs are not acceptable, which may be a problem for those who have given up driving and allowed their licenses to expire.

The most dangerous part of the SAVE America Act is a section requiring that states provide voter information to the Department of Homeland Security. The bill has the following requirement:

Each State shall submit the complete, official list of individuals registered as eligible voters for Federal office in the State to the Department of Homeland Security for comparison through the Systematic Alien Verification for Entitlements (‘SAVE’) system for the purposes of identifying individuals who are not citizens of the United States and taking the necessary steps to remove such individuals who are not citizens from the official list.

The Trump administration has been working feverishly to obtain voter information from the states. While a few, mostly Republican, states have complied, many have refused Trump's demands. The Trump administration has sued several states to obtain the data, but courts so far have sided with the states. This legislation will accomplish Trump's goal through other means. The SAVE database links to a Social Security Administration database. A whistleblower has alleged that the SSA database was compromised by DOGE employees and uploaded to an insecure cloud system. The government has admitted in court that a DOGE employee shared the data with a third party without authorization. Moreover, the SAVE system is error-prone. When used in Texas, there was a 14% error rate.

While the bill stipulates punishment for election officials who wrongly register non-citizens to vote, there is no penalty for wrongly removing an eligible voter from the rolls. In the best case, the requirement for states to submit their voting roles and then remove any voters deemed ineligible by DHS will result in many voters being wrongly removed by accident. In the worst case, the SAVE system will be manipulated to remove a higher number of voters from Democratic areas. In close elections, DHS would not have to remove a very large number to affect the election results.

The SAVE America Act will undoubtedly make voter registration significantly more difficult. It will marginally increase the difficulty of voting. But the real threat is the opportunity it provides to the Trump administration to manipulate the voter rolls of states. States will be required to remove any voters that DHS claims are ineligible. The error-prone system used by DHS will certainly cause the removal of many eligible voters. Moreover, a system controlled by Kristi Noem and Corey Lewandowski can hardly be trusted. This is another case where the short-term outlook of Republicans suggests that they are not planning on losing power. Otherwise, they would be more concerned about this authority someday ending up in the hands of Democratic operatives.

The worst part of the SAVE America Act is that there is simply no justification for it. There is not a widespread problem of voter or voter registration fraud in the United States, let alone among non-citizens. Republicans have manufactured concern about a problem that doesn't exist and are now proposing a solution to a problem that we don't have. Trump's fixation on passing the bill is simply an indication of his desire to intervene in the upcoming election. Therefore, far from "saving" America, the SAVE America Act is actually a danger to our democracy.