Presidential actions and proposed legislation in recent weeks could reshape how people register to vote for federal elections. What changes are possibly coming from Washington and what are the potential constitutional questions raised by them?
On Thursday, the House of Representatives approved the SAVE Act, which will require proof of citizenship for people to register to vote at a state level for federal elections. The act now goes to the Senate for its approval, where it may face the prospect of a filibuster.
And recently, President Donald Trump issued an executive order also requiring proof of citizenship for voters. His order also sought to end the practice of 18 states that count mail-in ballots arriving after Election Day with pre-election day postmarks.
Under the Constitution’s Article I, Section 4, the states and Congress jointly have responsibility for establishing election laws for members of Congress. Section 4 reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” (The president and vice president are elected under the Electoral College system established in Article II, Section 1, and other related sections of the Constitution. The presidential election takes place in even-numbered years, as do congressional elections).
The Safeguard American Voter Eligibility Act (SAVE Act)
The SAVE Act was introduced in Congress last year, was passed by the House and not voted on by the Senate. The act was again introduced to Congress in January 2025. In general, the act seeks to amend the National Voter Registration Act of 1993 (NVRA) to require documentary proof or an attestation of citizenship to register to vote in state-run elections for federal office. The act also requires states to delete non-citizens from their voter registration lists for federal elections. While states and territories are delegated the powers to conduct and administer voter registration, the NVRA and the proposed SAVE Act are examples of Congress under Article I, Section 4 using its ability to “make or alter” federal election regulations.
The federal code already bars non-citizens from voting in federal elections. The CRS says the current NVRA requires voter registration forms for federal elections to include a statement specifying eligibility requirements, including citizenship; an attestation the applicant meets each requirement; and the applicant’s signature under penalty of perjury. A separate act, the Help America Vote Act of 2002 (HAVA), requires voters in federal elections to supply a driver’s license number or partial Social Security number for registration. If the applicant lacks either identification number, a state can use methods under its laws or other federal data to verify a registrant’s eligibility.
The SAVE Act as proposed amends the NVRA to require that “the applicant presents documentary proof of United States citizenship in person to the office of the appropriate election official not later than the deadline provided by State law for the receipt of a completed voter registration application for the election.” In states where registration is allowed at a polling place, documentary proof must be presented to an appropriate election official.
Acceptable documents included a REAL ID card, a passport, another government document that lists a person’s birthplace, or a government photo ID with another document specified by the state. The SAVE Act also allows states to set a process and rules for registering applicants lacking the foresaid documents including a signed attestation of citizenship and eligibility subject to perjury.
Neither the NARA nor the SAVE Act requires documentation for the act of casting a ballot by mail or in person, except for people registering at a polling place just before voting.
According to the Congressional Research Service, the act does not apply to six states not covered by the NVRA (Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming) and to the U.S. territories.
The President’s Executive Order
On March 25, 2025, President Trump issued an executive order, “Preserving and Protecting the Integrity of American Elections.” The order claims the president has the power under federal Election Day ordinances “to require that votes be cast and received by the election date established in law.”
The order states that the federal Election Assistance Commission (EAC), a federal independent agency created by the Help America Vote Act, “shall take appropriate action to require, in its national mail voter registration form,” a copy of documents proving citizenship, such as a REAL ID card, a passport, or other acceptable identification. It does list a signed attestation of citizenship among the items of acceptable proof.
The order requires the EAC to “take all appropriate action to cease providing Federal funds to States” that do not comply with the national mail voter registration form requirement for documentary proof of United States citizenship. The order also command the EAC to “ to rescind all previous certifications of voting equipment” that does not match the new requirements.
The order directs federal government agencies to make all possible efforts to help states identify the citizenship of residents, and it authorizes the attorney general to determine if states and local governments withholding the names of people “suspected [of] violations of State and Federal election laws” should lose federal grant funding.
Current Controversies and Debates
So far, at least seven lawsuits have been filed challenging President Trump’s executive order about elections. On March 31, 2025, the Democratic National Committee (DNC) filed suit in federal court to contest the executive order. Other lawsuits were filed by the attorneys general of 19 states and the American Civil Liberties Union.
One theme across the lawsuits is a general claim that the president lacks the constitutional powers to regulate elections. “The President lacks any ‘direct control’ over the conduct of elections, notwithstanding President Trump’s unprecedented claim to the contrary,” argued the complaint filed by the Elias Law Group, which is representing the DNC.
The state attorneys general, in a suit filed in a federal court in Massachusetts, present a similar argument: “Under the Elections Clause, Congress may preempt State elections law for federal contests but nowhere does the Constitution provide the President, or the Executive Branch, with any independent power to modify the States’ procedures for conducting federal elections.”
In a published statement, White House spokesman Harrison Fields explained that the executive order represented “commonsense efforts to protect election integrity. The Trump administration is standing up for free, fair, and honest elections and asking this basic question is essential to our Constitutional Republic.”
The SAVE Act has faced some criticism for its requirement for voters to produce citizenship documentation if possible. By one estimate, as many as 21 million eligible voters may not have a driver's license, passport or other forms of documentation listed in the SAVE Act. Also, SAVE Act opponents claim its REAL ID requirements could present a barrier for married women whose names differ from those listed on their birth certificate.
Among the Act’s congressional supporters, however, Rep. Mary Miller (R-Ill.) said at a hearing that “the SAVE Act does have robust protections for married women whose names have changed. Arizona has a very similar statute on the books, and no one has been disenfranchised.”
Scott Bomboy is the editor in chief of the National Constitution Center.
