The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
This week the U.S. House approved the Safeguard American Voter Eligibility, or SAVE, Act, which contemplates dramatic changes to the way Americans register to vote and cast their ballots. The measure is a priority for House Speaker Mike Johnson, and he invoked dubious reports of noncitizens on Ohio’s voter rolls in a white paper backing the bill.
The proposal demands documentary proof of citizenship to vote, and the list of acceptable documents is narrow. In Ohio, most voters would probably need to present a passport or a birth certificate and photo ID to register.
More than 21 million eligible voters don’t have those documents at the ready, according to a recent study conducted by the University of Maryland Center for Democracy and Civic Engagement.
Realistically, the SAVE Act is likely dead-on-arrival in a Democratically controlled U.S. Senate. President Biden has committed to veto it if it made it to his desk. But critics warn that’s not the point. Instead, they argue the bill could lay the groundwork for spurious allegations of voter fraud following the election this fall.
“This is the first act,” America’s Voice senior research director Zachary Mueller said during a press conference ahead of the vote. The organization works to advance immigration reform that would create a pathway to citizenship for undocumented people.
Already, Johnson and other Republicans are framing Democratic opposition as trying to allow noncitizens to vote. And if Republicans lose elections in November, Mueller went on, the SAVE Act’s failure offers an antecedent for the GOP to argue “the reason why we didn’t win is because immigrants looted the ballot box and stole this election with the support of Democratic elites. And that lie is extremely, extremely dangerous.”
Ohio connections
To drum up support, Speaker Johnson’s office sent around a white paper insisting there is “irrefutable evidence” of noncitizens illegally registering and voting in U.S. elections. Among his examples was Ohio Secretary of State Frank LaRose’s recent report of 137 suspected noncitizens on Ohio’s voter rolls.
Although it’s possible some of those individuals have committed fraud, LaRose hasn’t proven it. And in an interview with conservative talk radio host Bob Frantz, he acknowledged those registrations could be “the result of an honest mistake.”
Under federal law, the BMV and other state agencies have to offer people seeking services voter registration forms. That’s part of the so-called Motor Voter law that has been on the books since the mid-1990s. In some cases, ineligible people fill out the forms, and even identify themselves as ineligible, but their registration is processed anyway.
Another potential explanation for those 137 flagged registrations may be for people who were recently naturalized. While a new citizen is an eligible voter as soon as they take the oath, until they visit the BMV, they might still look like a noncitizen in state records.
Of the 500-plus cases LaRose flagged before this latest batch, an Ohio Capital Journal investigation showed just one resulted in charges.
Although Republican officials regularly invoke the threat of noncitizens voting, they’ve yet to produce evidence of any widespread fraud. Brennan Center for Justice voting rights director Sean Morales-Doyle argued that’s because the consequences are severe and there’s no discernible benefit for the fraudulent voter.
“It’s a fairly unique crime,” he said, “in which the way you commit the crime is by putting down on paper, in a government record, your information, and the proof that you are committing the crime.”
He described it as an “infinitesimally rare phenomenon” for a noncitizen to vote illegally.
“And frankly, most of the time it turns out it was an accident,” he said. “It’s someone who misunderstood or often was misled about their eligibility, because someone who’s going in fully informed just isn’t going to take this kind of risk.”
Still, without evidence, Speaker Johnson claimed, “it is highly likely many more noncitizens remain registered to vote in Ohio.”
The speaker pointed to Ohio’s list maintenance program and argued it’s too cumbersome a process for identifying and removing alleged noncitizens.
But Ohio’s process for removing active voters reflects requirements laid out in the Motor Voter Act. In 2018, the U.S. Supreme Court upheld the process. Writing for the majority, Justice Samuel Alito described how Ohio’s system follows federal requirements “to the letter.”
The SAVE Act does nothing to alter those restrictions.
Acceptable documents
Under the SAVE Act, voters would need to establish they are who they claim to be and that they’re a citizen of the country. That might seem simple, but it gets complicated quickly.
A driver’s license alone doesn’t work, unless it indicates citizenship. A handful of states offer that feature, including for instance, some along the border with Canada. But many states like Ohio do not.
A Social Security number won’t help either. Johnson’s white paper argues asylees, parolees waiting for a court date and people who have overstayed their visa could have gotten one for work authorization or benefits. Notably, there are three different kinds of social security cards, and those groups get restricted versions. Rather than taking steps to wall off those Social Security numbers from voter rolls — or to develop an alternative system for work and benefit access — the SAVE Act eliminates social security numbers as a form of verification altogether.
In terms of singular documents, the bill allows for any “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.” But in practice, the only option in many states and situations would be a valid passport. That means most voters would have to provide a photo ID and a document related to their birth, adoption or naturalization.
Morales-Doyle argued there would be “devastating” consequences for voter eligibility if those restrictions were allowed to take effect.
“Nine percent of adult American citizens don’t have documentary proof of citizenship handy,” he said, referencing the University of Maryland study.
“When you think about it, whether you have an up-to-date and accurate, with-your-current-name-on-it passport or birth certificate that you can grab when you go to register to vote, literally (21.3) million adult American citizens don’t have that.”
Contingency plans
Even if a prospective voter has or can get the necessary documents, they could face further hurdles if their name doesn’t match up — say because of marriage or a divorce.
The legislation doesn’t explicitly lay out how to account for those discrepancies. Instead, it directs the federal Election Assistance Commission and each state to develop guidance on what additional documentation a citizen needs to provide.
For Americans who simply don’t have documentary proof of citizenship, the bill offers a similar catch-all process. The voter would have to bring whatever evidence they have and sign an “attestation under penalty of perjury” that they’re an eligible citizen. The election official would also have to sign an affidavit approving their application and explaining why their documents were sufficient.
Mueller from America’s Voice dismissed that provision as a “fig leaf,” and Morales-Doyle noted the bill also threatens election workers with fines and jail time if they wind up registering a noncitizen.
Morales-Doyle added one state in particular already tried the same idea. Former Kansas Secretary of State Kris Kobach led the charge on legislation requiring voters there to show proof of citizenship to register. The law had its own “alternative route,” Morales Doyle explained, where voters could provide other documents to demonstrate their citizenship.
But in practice it led to more than 30,000 voters having their registration suspended or canceled. A federal judge struck down the law in 2018 and an appeals court upheld that ruling in 2020. The judges wrote that in 19 years, “at most, 67 noncitizens registered or attempted to register to vote.”
More to the point, Morales-Doyle argued, if the measure’s backstop amounts to swearing an oath and signing a document, it threatens havoc for election administrators around the country only to recreate the current system where voters affirm their citizenship on a voter registration form.
“If all it is doing is saying that well, actually, if you don’t have documentary proof of citizenship, you can just swear you’re a citizen, then it’s just leaving us exactly where we stand now anyway,” he said. “Which goes to show that this is not really a solution of any kind.”
