SAVE Act

Enumerated powers · passes

Congress has explicit authority under Article I, Section 4, Clause 1 to regulate the 'Times, Places and Manner of holding Elections for Senators and Representatives.' This includes the power to set voter qualifications for federal elections, as affirmed by the Supreme Court in cases like Arizona v. Inter Tribal Council of Arizona (2013). The bill's requirement for documentary proof of citizenship is a regulation of the manner of federal elections, so it falls within Congress's enumerated powers.

Bill of Rights · raises concerns · severity: significant

The bill does not directly infringe on the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, or Ninth Amendments. However, the right to vote is a fundamental right protected by the Fourteenth Amendment (not the Bill of Rights per se), and the bill's requirements could impose an undue burden on that right, particularly for citizens who lack the required documents. The Supreme Court in cases like Crawford v. Marion County Election Board (2008) has recognized that voting is a fundamental right, and laws that impose severe burdens on that right must be narrowly tailored to a compelling state interest. The bill's broad requirements may not meet that standard, especially given the lack of evidence of widespread noncitizen voting.

Individual liberty · raises concerns · severity: significant

The bill restricts an individual's ability to exercise their right to vote without providing documentary proof of citizenship. While the government has a compelling interest in ensuring only citizens vote, the burden is on the government to justify the restriction. The bill imposes a significant burden on citizens who may not have easy access to the required documents, such as the elderly, the poor, or those born abroad. The alternative process for demonstrating citizenship is vague and may not be accessible to all. This restriction on a fundamental right without clear justification for its necessity raises serious concerns under the principle of individual sovereignty.

Decentralization · raises concerns · severity: significant

The bill fails the decentralization test. While the federal government has a role in federal elections, the bill consolidates voter registration procedures at the federal level, overriding state discretion. States have traditionally managed voter registration, and the bill's one-size-fits-all approach may not account for state-specific circumstances. The bill also imposes burdens on individuals that could be handled at the local level with less intrusive measures. The bill fails at least two of the four questions: it consolidates decision-making upward and imposes requirements that could be handled by states or localities with more flexibility.

Due process and takings · raises concerns · severity: significant

The bill raises due process concerns. It creates a private right of action against election officials who register applicants without documentary proof, and imposes criminal penalties. This could lead to arbitrary enforcement and chill the performance of official duties. The bill also requires states to remove noncitizens from voter rolls, but the process for doing so may not provide adequate notice or hearing, potentially violating procedural due process. The bill's requirements could also lead to the erroneous removal of eligible citizens from voter rolls, depriving them of their right to vote without due process.