Authored by Petr Svab via The Epoch Times (emphasis ours),
Tucked away in the stalled SAVE America Act is a provision meant to ensure that its proof-of-citizenship requirement would be enforced even if future administrations would choose not to.
The bill, which passed the House in February but got stuck in the Senate, would require new voter registrants to present proof of citizenship, such as a passport, a REAL ID, or birth certificate. It’s been much touted by Republicans as a necessary bulwark against voter fraud. Democrats have called it an attempt at voter suppression.
The bill would codify that the attorney general can sue officials that register voters without the citizenship check. Yet the question has remained what would happen if the attorney general refuses to enforce it.
The bill attempts to solve that issue by including a private right of action. It means that private citizens could also file lawsuits based on violations of the law.
“Private right of action is vital,” according to Hans von Spakovsky, election law expert and former member of the Federal Election Commission currently at the Advancing American Freedom think tank.
“Democrat administrations will refuse to enforce it at all, and particularly not against blue states. Private parties will be forced to do that,” he told The Epoch Times in a text message.
The caveat is the right to sue is written as an amendment of the 1993 National Voter Registration Act, which says that only a person “aggrieved by a violation” can sue and only if the violation occurred within 30 days before a federal election. Otherwise, the person needs to first notify the top election official in the state and then sue only if the state fails to address the violation for some time—120 or 20 days, depending on how close to an election.
Who is ‘Aggrieved’?
Different federal courts have come up with somewhat different interpretations of who is “aggrieved” by a violation of election laws. Just recently, the Ninth Circuit rejected a suit by Republican voters which alleged that their votes were at risk of dilution by ineligible voters on Arizona’s voter rolls. The court held that the injury to the voters was “entirely hypothetical” and thus failing the requirements of the Constitution’s Article III. The article has been interpreted by courts to demand that harm to litigants must be “concrete and particularized” as well as “actual or imminent.”
Advocacy organizations have been using a claim that they have been harmed because they had to divert resources from their core functions, but a 2024 Supreme Court decision restricted that legal theory.
“An organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” said the opinion by Justice Brett Kavanaugh.
At least some organizations may still be able to bring such suits. The Republican National Committee, for example, asserted that improper voter registrations in North Carolina forced them to divert resources from their core function of voter outreach into their election security efforts. The Fourth Circuit agreed in 2024 that this claim was sufficient to establish injury.
Lacking Votes
While the SAVE America Act enjoys the energetic support of President Donald Trump, it has hit a formidable roadblock in the Senate, where Republicans lack the 60 votes to overcome the Democratic filibuster. In addition, some GOP Senators have already indicated they don’t support the bill.
Trump has demanded the SAVE Act be included in a bill to fund the Department of Homeland Security, which has been defunded for more than seven weeks. Democrats have blocked the funding, demanding reforms to Immigration and Customs Enforcement deportation practices.
A month ago, the President also said won’t sign any other legislation until the SAVE Act is passed.
Senate Minority Leader Chuck Schumer (D-N.Y.) wouldn’t budge.
“If Trump is saying he won’t sign any bills until the SAVE Act is passed, then so be it: there will be total gridlock in the Senate,” he said in an X post. “Senate Democrats will not help pass the SAVE Act under any circumstances.”
Senate Majority Leader John Thune (R-S.D.) brought the bill to the floor last month for a vote to force Democrats to go on record with their opposition. Democrats did so unanimously.
The Senate has been on a two-week recess since March 26 and is expected to restart legislative agenda on April 13.
Some Republicans, including Trump, have called for a so-called talking filibuster, forcing Democrats to talk non-stop to block the bill’s passing. Thune said last month, however, he lacks the votes among Republicans to invoke it.