Two weeks from a shutdown

Déjà vu all over again

Photo by Tiffany Tertipes on Unsplash

Election Day 2024 is less than 50 days away — so, naturally, I’ve been spending a lot of time covering the presidential campaign lately.

But today, I want to return my focus to Washington and fill you in on a date that’s even closer: we are exactly two weeks away from the next government shutdown deadline on October 1.

Let’s kick things off with a reader question.

Jack M. asks: Could you explain what the SAVE Act is and how it differs from current U.S. law(s) on Federal Election voting requirements?

The SAVE Act is the abbreviation for the Safeguard American Voter Eligibility Act, and it’s relevant to the shutdown battle because House Speaker Mike Johnson (R-LA) is — for now — insisting that he won’t approve a government funding bill that doesn’t include the measure.

The bill, which the House previously passed in July, would require individuals to provide proof of U.S. citizenship before registering to vote in federal elections.

How is that different from the status quo?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 already makes it a crime (punishable by up to one year in prison) for non-citizens to vote in federal elections¹ — but it doesn’t require prospective voters to do anything to prove their citizenship.

In fact, when states have attempted to add their own proof-of-citizenship requirements for federal elections, courts have ruled that they are constrained by the National Voter Registration Act of 1993, which governs the voter registration process. Under the NVRA, states must “accept and use” a standardized voter registration form for federal elections; because that form requires registrants to attest under penalty of perjury that they are a U.S. citizen, but does not make them prove it, states are currently limited from going any further.

Arizona is the state that has most frequently clashed with the federal government here. In 2013, the Supreme Court ruled that the state’s proof-of-citizenship requirement for federal elections violated the NVRA; since then, the state has required Arizonans to prove their citizenship to vote in state and local elections, but not for federal elections. After Arizona tried again in 2022 to require proof-of-citizenship for federal elections, the Supreme Court ordered a return to the bifurcated system in a ruling last month, allowing Arizona to use its own form requiring proof-of-citizenship for state elections but reiterating that the state must comply with the NVRA form for federal elections.

The clashes with Arizona offer a window into how the SAVE Act would change the status quo: under the bill, instead of states being prevented from having voters prove their citizenship before registering, states would be required to do so.

Specifically, the SAVE Act lists five ways a prospective voter could provide documentary proof of citizenship before registering:

• A REAL ID indicating U.S. citizenship

• A valid U.S. passport

• A military identification card (along with a service record that shows the applicant was born in the U.S.)

• A government-issued photo ID that shows the applicant was born in the U.S.

• A government-issued photo ID that doesn’t show the applicant was born in the U.S. plus a valid secondary document

The bill also requires each state to “establish a process” that would allow voter registration for “an applicant who cannot provide” any of those documents, as long as they submit other evidence to a state or local official.

Although there is not currently any requirement for prospective voters to prove their citizenship — and despite the large number (around 25 million) of non-citizens living in the U.S. — no evidence exists that many of them are casting U.S. ballots. Both the left-leaning Brennan Center for Justice and right-leaning Cato Institute have concluded that non-citizen voting is vanishingly rare. In 2016, a Brennan Center study of 23.5 million votes cast in 42 jurisdictions found only 30 incidents of suspected non-citizen voting among them.

Because non-citizen voting is already so uncommon, the biggest impact of the SAVE Act would likely not be meaningfully lowering the amount of non-citizens casting ballots — but making it harder to vote for the estimated 9% of U.S. citizens who don’t have any of the aforementioned documents readily available. (“There are myriad reasons for this — the documents might be in the home of another family member or in a safety deposit box,” the Brennan Center notes. “And at least 3.8 million don’t have these documents at all, often because they were lost, destroyed, or stolen.”)

Again, Arizona offers a perfect opportunity to investigate this impact, since Arizonans have to prove their citizenship to vote in state elections, but not federal elections. According to Votebeat, there is no evidence of non-citizens voting in federal elections in any larger numbers — but there is evidence of mostly “young adults living on or near college campuses” being prevented from participating in state elections, presumably due to an inability to access the documents needed to register on the state level.

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Is the SAVE Act likely to become law? No.

We’ve been through this dance before. Johnson is insisting that he won’t fund the government without the SAVE Act attached, but hasn’t even been able to line up his unruly Republican conference behind that position. Johnson planned to hold a vote last week on a continuing resolution (CR) that would have funded the government for six months and implemented the SAVE Act — but was forced to cancel the vote amid GOP opposition.

If history is any guide, Johnson will spend this week trying to craft a bill amenable to the Republican conference — before eventually facing the reality that any CR will also have to pass the Democratic-led Senate, and accepting a bipartisan “clean”² CR without the SAVE Act instead of risking a shutdown.

The House returns to Washington today after a long weekend; I’ll be tracking this story all week as we watch for the speaker’s next move.

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More news to know

Trump shooting latest: NBC: Secret Service chief makes remarkable admission: We need a ‘paradigm shift’

• NYT: Secret Service Admits Not Searching Golf Course Perimeter, Drawing New Scrutiny

• WaPo: Trump’s golf outings have long concerned Secret Service

• Washington Examiner: Trump would-be assassin was subject of FBI tip in 2019

• CNN: From Ukraine to Hawaii, Trump assassination attempt suspect’s odd behavior suggested ‘delusion of grandeur’

NYT: Tense Teamsters Meeting With Harris Ends With an Endorsement Still Dangling

AP: A secretive group recruited far-right candidates in key US House races. It could help Democrats

CNN: NOAA confirms investigation into RFK Jr. over dead whale carcass

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The day ahead

All times Eastern.

• President Biden will receive a briefing on the wildfire season and meet with World Bank President Ajay Banga to discuss global poverty.

• Vice President Harris will participate in a live interview with members of the National Association of Black Journalists in Philadelphia. Watch at 2:30 p.m.

• Former President Trump will participate in a town hall in Flint, Michigan moderated by Gov. Sarah Huckabee Sanders (R-AR). Watch at 7 p.m.

• Sen. JD Vance will hold a campaign event in Eau Claire, Wisconsin. Watch at 5:30 p.m.

• The Senate will hold a procedural vote on the Right to IVF Act, which the chamber previously failed to advance in June. The chamber will also vote on confirmation of a district judge nominee.

• The House will vote on up to 25 pieces of legislation.

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Before I go…

Did you think last week’s presidential debate was tense? At least no one was clobbered with a chair, as happened at a mayoral debate in Sao Paulo, Brazil’s largest city, on Sunday.

The incident grew out of an existing feud between rival candidates José Luiz Datena, a TV journalist, and Pablo Marçal, a right-wing influencer. At a previous debate, Datena had threatened to hit Marçal after Marçal brought up a 2019 sexual harassment complaint filed against Datena by a coworker.

At Sunday’s debate, Marçal referenced the threat and said that Datena was not man enough to hit him — and, well, here’s what happened next…

Marçal was later hospitalized with a bruised rib.

1. Because states are given leeway to regulate elections (unless the federal government passes a law, which trumps any state provisions), that means that states were allowed to let non-citizens vote in federal elections up until the 90’s.

In fact, in the early U.S., it wasn’t uncommon for states to do so; it wasn’t until the 1900s, when the country began growing more restrictionist, that most states started prohibiting non-citizens from voting. By the 1920s, every state had added the prohibition.

2. Or mostly clean: there is now chatter about adding a Secret Service funding boost to the CR, for obvious reasons.