CONSTITUTIONAL INTERPRETATIONS

The President and the House of Representatives want to superimpose citizenship documentation requirements on people who present themselves for voting, or else who present mail-in ballots for counting, on Election Day (November 3, 2026),  when every seat in the House is up for election or reelection. To accomplish that feat, the House has passed the proposed “SAVE America Act” as House Resolution 7296  (HR 7296) and has submitted it to the Senate for immediate enactment.

HR 7296 would require every voter seeking to participate in the November 3 election to have documentary proof of his or her citizenship, such as a currently valid passport, a “Real ID” driver’s license that affirmatively states that the holder is a United States citizen, or else a driver’s license bearing a photograph of its holder, combined with a certified copy of his or her birth certificate proving that the license holder was born in the United States.[1] A state or local election officer who allows someone to vote without all of the newly required documentation of citizenship would be subject to criminal prosecution by the federal government.

Unsurprisingly, the drafters of HR 7296 ignored the United States Constitution. Article I, Section 2 of the Constitution, that governs the election of members of the House of Representatives, provides that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Similarly, the 17^th Amendment of the Constitution, that governs the election of members of the Senate, provides that “The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.” While those provisions may be ambiguous with respect to the interpretive issue of whether they provide for a floor, or a ceiling of voter qualifications, the ambiguity is resolved by the Tenth Amendment to the Constitution.

The Tenth Amendment provides that:

The powers not delegated to the United States by the Constitution, norprohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution nowhere delegates power to the federal government to set general qualifications to vote in either state or federal elections.[2] That power is specifically reserved, by the Tenth Amendment, to the states, which enact their own laws establishing “qualifications” to vote for members of their own house of their state legislature with the most members.

The proposed “SAVE America Act” is clearly “repugnant” to the federal Constitution, and must be, if ever enacted, declared “void” by American courts. Marbury v. Madison, 5 U.S. 137, 180 (1803).

[1] Other documents may be required, such as a copy of a marriage license, or may be available to complete proof of American citizenship.

[2] The 15^th Amendment prohibits disqualification to vote on account of “race, color, or previous condition of servitude,” and the 19^th Amendment prohibits disqualification to vote on account of “sex.”