Walter Olson
The Framers greatly feared that a president or ruling national faction might someday gain power over the administration of elections. The Constitution guards against this danger by placing primary responsibility for elections with the states, subject to a rulemaking power that Congress has wisely used sparingly. The proposed SAVE Act, which passed the House yesterday, and the broader MEGA Act would impose rash, perhaps even unworkable, new rules while arming the president with dangerous new powers to harass and menace localities and officials whose decisions on election administration are not to his liking.
There’s nothing wrong with voter ID—most states use it, generally with good results. But the SAVE Act and MEGA Act have little to do with that issue. They are fueled by alarms about supposedly widespread noncitizen voting and voter impersonation that simply aren’t borne out by the evidence. Their new demands for documentary proof of citizenship (DPOC) go beyond what almost any state has chosen to enact voluntarily and would impose serious burdens on both qualified citizen voters and administrators.
The bills expose local administrators to a risk of imprisonment if they fail to tick the right boxes even when no unqualified person in fact registers or votes. The new rules would take effect immediately, requiring states to set aside existing preparations for the 2026 elections and scramble to train staff and revamp data systems on the fly. They would abolish all-mail electoral systems that are popular out West, requiring many qualified, US-born voters to pay repeated visits to a distant county office if they hope to stay on the rolls. The acts give the federal government new powers of prosecution and discretionary regulation that would be highly susceptible to misuse, as well as empowering busybody or ideologically motivated private citizens to sue.
There’s more. The bill would force states to turn over voter rolls to these same federal overseers notwithstanding serious privacy concerns and the high chance of misuse. The broader MEGA Act even reaches out to ban the use of ranked-choice voting for federal races in states such as Alaska and Maine, even though there is zero evidence that such voting has caused any election integrity problems in those states. While election reform is most likely to endure when done with bipartisan support, the bills are, at this point, almost a purely partisan play.
Not too long ago in this space, I was sharply critical of the then-ruling Democrats’ omnibus bill For the People Act (H.R. 1) for some parallel reasons: the faulty factual assumptions on which it was based, its gathering of centralized power in Washington, and its heaping of impossible burdens on local administrators. It’s as if the House Republican majority, upon taking over, learned nothing and cast its former scruples to the wind at the first opportunity.
Given the serious practical complications that DPOC raises, the best course is to continue to allow states to experiment with it so we can learn more about its workability and gain guidance from the courts. And the drafters of the SAVE Act should go back to the drawing board, or if the bill cannot be redrafted in line with sound principles of governance, it should be scrapped entirely.