Assessing Claims About the SAVE Act

…“In plain language, the SAVE Act expects states to ask for supplementary documents, such as a marriage certificate, when a birth certificate shows a different name than a person’s driver’s license,” Matt Germer, policy director of governance at the R Street Institute, told The Dispatch Fact Check. What could those individual state processes look like? Germer points to Arizona, the only U.S. state to currently require proof of U.S. citizenship to vote in state and local elections. “In practice, applicants with a name mismatch must provide supplementary documentation, such as a marriage certificate,” he said. However, one difference he noted is that whereas the Arizona law permits a birth certificate photocopy as proof of citizenship, the SAVE Act does not. 

It’s unclear to what degree those processes could vary from state to state. “Will this involve some combination of second-best documents, sworn attestations, in-person interviews, or maybe something else?” Cato Institute senior fellow Walter Olson wrote in August. “The bill is sparse and vague on these crucial details.”

Instead of stipulating those details in the text of the bill, the SAVE Act delegates such decisions to the Election Assistance Commission (EAC). “The EAC would provide some national-level guidance, but the specifics of the process would be left up to the states,” Germer explained. Would the independent federal agency serve as an advisory commission that would help states develop its own individual processes? Or would it act more like a regulator, seeking to implement a uniform requirement for all 50 states’ processes? That much remains unclear. 

Language expressed in the bill’s text at times treats the EAC as an advisory committee, and at other times expresses its role as a regulator. On one hand, Germer explained, the SAVE Act states the EAC shall issue “guidance,” and guidance documents “do not carry the same force of law” as administrative law. But, on the other hand, the bill’s language also clearly states that each state’s process is “subject to any relevant guidance” the EAC adopts. “It’s my initial interpretation that if a state failed to adhere to the guidance set out by the EAC, it may expose them to litigation on those grounds,” Germer said. “That said, the SAVE Act contemplates the role of the EAC in a few different ways, and it’s possible some of those roles would have their acts carry different weight.” 

The bill states that the EAC shall create an affidavit for those unable to provide documentary proof of citizenship, which, according to Germer, “puts a fair amount of power into the EAC to create a national standard.” But, Germer adds, “the bill also requires states to provide disability accommodations ‘in consultation with’ the EAC, an approach that keeps the states as the central actor and the EAC as an adviser.” Therefore, the specific role the SAVE Act tasks the EAC with when it comes to developing “relevant guidance” remains an open question.