What is the SAVE America Act and how does it fit into President Trump’s larger ambition to control elections? NPR’s Steve Inskeep speaks with Georgetown Law professor Steve Vladeck.
MICHEL MARTIN, HOST:
The Senate plans to take up a bill this week that would impose national rules on elections. It’s called the SAVE America Act, a name that alludes to unfounded theories that people without legal status vote. President Trump mentioned it in his State of the Union speech.
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PRESIDENT DONALD TRUMP: It’s very simple. All voters must show voter ID.
MARTIN: Now, voter ID laws are popular, but this legislation includes multiple provisions beyond that. Trump also has talked of taking federal control of this fall’s elections. As his approval rating fell in January, he said, quote, “we shouldn’t have an election,” and federal agents under his authority have seized ballots from the 2020 election that Trump lost. So what can a president really do to this fall’s congressional elections? Our co-host Steve Inskeep took that up with Stephen Vladeck, a professor at Georgetown University Law Center.
STEVE INSKEEP, BYLINE: What is the legal mechanism by which this thing that is done by the states is suddenly taken over by the federal government?
STEPHEN VLADECK: Yeah. So the Constitution in Article 1, Section 4 sets as a default rule that elections, even for Congress and even for the president, are to be administered by states, but it does allow Congress to intervene and for Congress to basically displace the local and state rules for congressional and presidential elections for everything other than the place of choosing senators, which basically means, Steve, Congress, by statute, could, if it wanted to, set uniform rules for election, including, for example, one rule Congress has set, which is that Election Day is the first Tuesday after the first Monday in November.
INSKEEP: OK, so you can pass regulations. You can go to the point of almost federalizing elections through an act of Congress. But this is a president that doesn’t really go to Congress that much, tends to do things on his own. Can he declare an emergency and do this himself?
VLADECK: There’s no provision in the Constitution that allows the president to act without Congress in this space. Even the, you know, ability that the president has to declare a national emergency, all that that does is it unlocks other statutes in which Congress has said, during an emergency, you, the president, can do X, Y and Z. Steve, there are no statutes that say, during an emergency, the president can take over elections. Congress has never, in its wisdom, given that power to the president.
INSKEEP: Now, with that said, we’ve discovered that on questions like tariffs, where the Supreme Court has found against the president, he nevertheless is able to assert a legal interpretation, do what he wants and do it for months and months before the courts catch up. The election is not that far ahead. Could the president declare an emergency, take over elections and tell the court to worry about it later?
VLADECK: He can try, but I think here, the difference between so many of the president’s actions over the last 13 1/2 months, and what happens in elections is the infrastructure. So when it comes to tariffs, yes, the president is telling Customs and Border Protection that they have to charge more customs. Those are government officers who answer directly to the president and who have to do what he tells them to do if they don’t want to be fired. That’s how you get tariffs even if the tariffs are unlawful.
Elections, Steve, are still run by local and state governments. When we go to the polls, we are going to local libraries or schools or other institutions, and there, we are encountering local and state officials. The president can try to cajole those local and state officials into doing things. But at the end of the day, whether someone wins a House seat in New York, for example, is up to the New York secretary of state, not Secretary Rubio, not the president. The president might, maybe, try on the far side of the election to seize ballots on some inventive grounds of emergency, but that wouldn’t necessarily stop the voting process. That would just spark litigation.
INSKEEP: Could you imagine some red states – states supportive of the president – acting in ways that he demands to, I don’t know, eliminate the votes in a blue district, a democratic district, within that red state?
VLADECK: So I do think it’s a very serious concern, but I think that, too, Steve, will provoke litigation. And then the question just becomes, do these things happen in a sufficiently long time horizon that the courts can stop the mischief? I don’t think we’re looking at the president literally directing, say, the secretary of state of Texas to not let Democrats in certain districts vote. I think it’s probably more about trying to curb mail-in votes in states that still allow them, trying to basically restrict maybe how many election places are open on Election Day and other ways of just trying to interfere with who gets to vote.
We’ve seen the president, of course, make lots of noise about trying to require voter ID, whether by executive order or through the SAVE Act that’s currently pending in the Senate. But again, the critical point that I think everyone has to understand is, without new legislation from Congress, all the president can do is ask, and the states don’t have to listen. If they choose to listen, then perhaps they’re opening themselves up to litigation.
INSKEEP: What is the SAVE America Act, which the president has advocated and many Republicans in Congress have proposed repeatedly?
VLADECK: It is basically an effort to create new federal standards for voting, including a new requirement that voters have, quote, “documentary proof of citizenship” in order to be able to register to vote. This is pitched as a measure to prevent fraud when it comes to voting by noncitizens. The problem, of course, is that there are countless Americans who don’t have the requisite documentary proof of U.S. citizenship. There are many states in which a driver’s license would not count. For example, there are plenty of folks who don’t have driver’s licenses. And so the SAVE Act is, I think, an effort to try to make it harder for people to vote in a context in which the alleged sin that it is trying to correct happens, Steve, so infrequently that it really does seem like the solution would be much, much worse than the disease.
INSKEEP: A person who is married came up to me asking about the SAVE Act and saying, I can’t even bring my birth certificate to prove my citizenship because I’m married. I have my married name. It’s different than the name on the birth certificate. I would be disenfranchised.
VLADECK: Would she be? So the Republicans suggest that local and state officials should interpret the bill to not let that happen. But, Steve, one of the things we should be avoiding when it comes to elections is that kind of confusion. You know, people who are unquestionably citizens, people who are unquestionably registered to vote should not have to be put through the paces to exercise their constitutional rights. This is why, for example, the popular Republican talking point that you need an ID to buy alcohol doesn’t really map onto elections. You don’t have a constitutional right to buy alcohol.
The problem here, I think, is that the bill can be spun as only responding to voter fraud, of which there is so little that it’s actually remarkable that this is a problem that we’re worried about. But its unquestioned effect is going to be to disenfranchise a meaningful number of voters – Democrats, Republicans, independents alike – who just, for whatever reason, don’t have the right proof of citizenship that the bill would require them to have.
INSKEEP: Stephen Vladeck, Georgetown University Law Center. Thanks so much.
VLADECK: Thank you.
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