The SAVE Act: Awful and Unconstitutional

Though it would do nothing to protect the integrity of elections, it would keep many citizens from being able to register to vote.

The Safeguard American Voter Eligibility (SAVE America) Act, aggressively championed by President Donald Trump, would be an unconstitutional restriction on the right to vote that would keep many citizens from voting—with little benefit for our electoral system. Senate Democrats must continue to filibuster this proposed legislation. If the Republicans heed Trump’s call to use a “talking filibuster” to adopt this, courts must quickly declare the SAVE Act unconstitutional.

The SAVE Act would require that individuals provide documentary proof of citizenship when registering to vote and photo identification at the time of voting. As PBS reported, it would require voters submitting absentee mail ballots to provide a photocopy of their ID. The bill also would require states to frequently review voter rolls and remove any noncitizens. And it would mandate that states share voter registration data with the federal government, which many states have refused to do. It would create personal criminal liability for election officials who violate the law.

Photo by Manny Becerra on Unsplash

The bill passed the House of Representatives in February and is stalled in the Senate by a Democratic filibuster. Last fall, Trump urged Republican senators to change the Senate’s rules to break the funding stalemate, allowing the bill to pass with 50 votes (and if needed, the vice president breaking a tie) rather than the 60 votes needed to end a filibuster. Now, he’s calling for a talking filibuster instead, which would require Democrats to remain talking on the floor until time expired. Trump has threatened to not sign any legislation passed by Congress other than to restore funding for the Department of Homeland Security until the Senate passes the SAVE Act. Republican leadership in the Senate indicated that there are not enough votes to change the Senate’s filibuster rules, but Trump’s pressure campaign continues.

Why is Trump pushing so hard for the SAVE Act? Probably to advance his theory of significant voter fraud, even though study after study shows that there is no evidence to support his claims. Also, he likely realizes, as studies have shown, that the SAVE Act would hurt Democrats more than Republicans, although citizens of both parties will be kept from participating in elections.

The SAVE Act addresses a problem that does not exist and would have devastating consequences regarding the right to vote. There is no evidence whatsoever that non-citizens are registering to vote and casting ballots. A federal law, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, already explicitly prohibits non-citizens from voting in federal elections and makes it a crime for a person to falsely attest under penalty of perjury to being a citizen and eligible to vote.

Many studies have come to the same conclusion: Instances of non-citizens voting are extremely rare. A 2017 study by the Brennan Center looked at 42 jurisdictions in which 23.5 million votes were cast and found only an estimated 30 incidents of non-citizens voting, or 0.0001 percent of the ballots cast. The Heritage Foundation, which advocates for the SAVE Act, found only 68 documented instances of non-citizens voting since the 1980s, out of over a billion ballots cast.

Some states have carefully reviewed their elections to investigate whether non-citizens are voting and found that it just isn’t happening. Utah, for example, reviewed its entire voter list from April 2025 through January 2026. After an exhaustive review of 2 million registered voters, it found only one instance of a noncitizen registering to vote and zero instances of a non-citizen voting. In Georgia, a 2024 audit of its 8.2 million registered voters found only 20 noncitizens registered.

Though the SAVE Act would do nothing to protect the integrity of elections, it would keep many citizens from being able to register to vote. The law would require that a person prove citizenship by presenting an original birth certificate or a passport or naturalization certificate. Many people do not have any of these. The Brennan Center estimates that more than 21 million Americans lack ready access to those documents.

It is estimated that about half of people in this country do not have a current passport. Also, many people do not have a copy of their original birth certificate. And birth certificates often do not reflect a person’s current name. An estimated 69 million married people changed their name from that on their birth certificate.

When Kansas adopted a proof-of-citizenship requirement, 31,000 citizens – or 12 percent of all applicants – were kept from registration. Quite importantly, this does not reflect how many people will choose not to bother to register if they have to take extra steps—figuring out how to obtain an original birth certificate or applying for a passport.

Studies show that necessitating proof of citizenship for voter registration, like requirements for photo identification for voting, will have a disproportionate effect on lower-income individuals and people of color. The reality is that those with passports who engage in international travel are much more likely to be those with higher incomes and greater wealth. And, according to the NAACP Legal Defense Fund, nearly half of Black Americans under 30 do not have ID with their current name and address.

All of this should be enough to persuade Democrats to continue to filibuster the SAVE Act. Hopefully enough Republican senators will resist Trump’s pressure and refuse to eliminate the filibuster. Although Trump doesn’t seem to have considered the long-term consequences, Republican senators should realize that they will be in the minority again and will want to the filibuster intact.

If Senate Republicans cave, the courts should quickly declare the SAVE Act unconstitutional. The Supreme Court has said courts should balance the burden on the right to vote against the state’s interest in preventing fraud. The SAVE Act would impose a great burden on the ability of people to register to vote and do virtually nothing to prevent fraud.

Moreover, the court has been clear that people cannot be required to pay to vote. In Harper v. Virginia Board of Elections (1966), the court found that a poll tax of $1.50 was unconstitutional. The court declared, “To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant.” The SAVE Act would essentially impose an unconstitutional cost to vote because of fees to get a birth certificate or a passport.

Our country should make registering to vote and voting easier, not much more difficult. The SAVE Act is a terrible idea that hopefully will not become law.

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.

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