DEMOCRACY WATCHAs Trump Pushes Voting Restrictions, States Have a Rarely Used Option to Push Back
President Donald Trump and Republicans in Congress try to impose a proof-of-citizenship voter registration requirement nationwide through a long-shot proposal called the Safeguard American Voter Eligibility Act or SAVE America Act. Blue states would have a major tool — having separate rules for non-federal elections –with which to push back. Whether they would use it is less clear.
When Kansas began requiring residents to prove their U.S. citizenship before voting more than a decade ago, Steven Wayne Fish tried and failed.
A first-time father in his 30s at the time, he wanted a say in debates over public school funding despite having never voted before. But Fish, who was born on a since-decommissioned Air Force base in Illinois, couldn’t find his birth certificate, leaving him unable to register for the 2014 general election.
A federal court eventually blocked the Kansas law following a lawsuit in which Fish was the namesake plaintiff. For years, the Fish legal case served as a warning to politicians who wanted voters to produce documents proving their citizenship.
That’s changing, as President Donald Trump and Republicans in Congress try to impose a similar proof-of-citizenship voter registration requirement nationwide through a long-shot proposal called the Safeguard American Voter Eligibility Act or SAVE America Act.
Blue states would have a major tool to push back. Whether they would use it is less clear.
States have the power to set separate rules for state and local elections and to apply federal restrictions only on residents voting in federal races, according to interviews with more than a dozen election experts, officials and lawmakers. Operating two distinct election systems, a process called bifurcation, would give states more freedom over who can vote in races for governor, state legislature and other down-ballot contests.
Bifurcation would ensure that individuals like Fish could still cast a ballot in some contests, even if they couldn’t vote for members of Congress or president.
“It’s very strange and surreal,” Fish told Stateline about a potential national requirement during an interview on Tuesday in Ottawa, Kansas, where he works at a warehouse. Those looking back at his state, he said, will see “it did not work at all.”
Under the U.S. Constitution, states regulate the times, places and manner of federal elections, though Congress has the authority to override them. But Congress has far less authority over state and local elections.
Brandon Fincher, managing editor of the Journal of Election Administration Research & Practice, said a national proof-of-citizenship requirement would likely generate interest in bifurcation. “I think it absolutely would,” said Fincher, who wrote a dissertation that found states are likely to adopt dual systems when their voter registration rules are threatened by federal mandates or court orders.
