"This Is the Most Extraordinary Attack on Voting Rights in American History"
With the "SAVE Act," MAGA authoritarian extremists are trying to ensure that Republicans never lose another election
By Matt Cohen and Jacob Knutson Democracy Docket
The 15th Amendment banned racial discrimination in voting. The Voting Rights Act, a century later, finally made the amendment’s promise a reality for Black and Brown voters across the South. The 1993 Motor Voter law helped get millions of Americans onto the rolls and established the government’s responsibility to make registration accessible to all.
For over a century and a half, the U.S. government has largely acted as a force to protect and expand voting rights — often in opposition to efforts by state or local officials to limit them.
Until now, neither house of Congress had ever passed legislation to significantly restrict access to the ballot — except for rare symbolic measures, as when the House passed the Safeguard American Voter Eligibility (SAVE) Act last year despite Democratic control of the Senate and then-President Joe Biden’s pledge that he would veto it.
But with the House’s approval of the same measure last week, that’s changed.
Voter suppression looms. The GOP bill, a direct product of President Donald Trump’s decade-long obsession with illegal voting, would require documentary proof of citizenship for voter registration, bar states from counting late-arriving mail ballots, and dramatically infringe on states’ authority to run elections.
The SAVE Act still faces a steep uphill climb to overcome a likely Democratic filibuster in the Senate. But with the GOP controlling Congress and the White House, tightening voting rules near the top of Trump’s agenda, and the party largely unified around the issue, the prospect of major voter suppression legislation becoming law nationwide is much closer to reality than probably ever before.
Voting-rights advocates and Democratic officials have already made clear the massive threat the SAVE Act poses to access to the ballot in the here and now, warning that it could disenfranchise millions of eligible voters.
But in interviews with Democracy Docket, historians and voting experts sought to put the SAVE Act in historical context — and could point to no close parallels.
“There’s never been an attack on voting rights out of Congress like this,” said Alexander Keyssar, a professor of History and Social Policy at the Harvard Kennedy School, and a leading historian of voting rights. “It’s always been the federal government trying to keep states in check on voting rights, for the most part.”
Sean Wilentz, a professor of American History at Princeton University, was even blunter.
“It’s the most extraordinary attack on voting rights in American history,” Wilentz said. “This is an attempt to destroy American democracy as we know it.”
A 180 for government on voting. The House’s action comes at a time when the U.S. Justice Department has pulled out of a slew of cases to protect minority voting rights, while offering support to election deniers and January 6 rioters.
And it comes just 16 days after a White House order, already the subject of multiple lawsuits, that appears modeled on the SAVE Act and aims to require states to impose strict new voting rules that could disenfranchise millions.
The rapid-fire sequence of developments from Washington, said voting-rights experts and historians, underscores the troubling, and historically unprecedented, 180 degree turn that the age of Trump has brought.
Where once the federal government operated — albeit often imperfectly — as a defender of access to the ballot and an ally of marginalized groups at risk of disenfranchisement, today it plays the opposite role: as the prime mover behind efforts to make voting more difficult, and as a champion of those seeking to permanently undermine fair elections.
“Congress has never passed a voter-suppression law like this before,” Sean Morales-Doyle, the director of the Brennan Center for Justice’s voting-rights program, told us. “When it has exercised its power to regulate federal elections, Congress has usually done so to protect the freedom to vote.”
The lens of history. An early congressional effort to do so was known as the Lodge Bill of 1890. The measure aimed to enforce the guarantee of the 15th Amendment by allowing for the appointment of federal supervisors for congressional elections, largely to protect against the disenfranchisement schemes then emerging in Southern states.
The bill narrowly passed the House but failed to overcome a Democratic filibuster in the Senate.
After that, Congress largely got out of the elections business — with the major exception of passing the 19th Amendment, which, once ratified by the states in 1920, enfranchised women — until the Civil Rights era.
The 1957 Civil Rights Act bolstered the Justice Department’s ability to prosecute voting rights violations and protect ballot access and set the stage for the passage of the Voting Rights Act (VRA) eight years later.
That landmark federal legislation barred state and local governments from taking any steps that deny or abridge the right to vote “on account of race or color.” Its most effective plank, known as Section 5 — invalidated by the Supreme Court in 2013 in Shelby County v. Holder — required states and localities in most of the South to submit any voting changes to the federal government before they went into effect, to ensure they didn’t harm minority voters. Over the ensuing decades, lawmakers acted several times to strengthen the VRA.
Reaching voters where they are. It isn’t only the scourge of racial bias in voting that Congress has addressed. In 1993, it responded to a troubling drop in voter turnout in recent elections by making it easier for the tens of millions of eligible but unregistered voters to get onto the rolls.
The 1993 Motor Voter law — officially the National Voter Registration Act — required that states give people the chance to register not only at motor vehicles departments but at all state agencies. That included Medicaid and other public-assistance agencies, in order to ensure that lower-income Americans were reached — much to the consternation of some of the law’s right-wing opponents.
And after the presidential election debacle of Florida 2000 Congress passed the 2002 Help America Vote Act, which provided funding for election administration, and created a federal agency to certify voting machines and assist states in running elections.
It isn’t only lawmakers who have acted as a force for protecting access to voting.
Almost since the VRA became law, the U.S. Justice Department has played a crucial role in making it effective through dogged efforts to hold states and localities accountable for persistent schemes to keep minority voters from the ballot box or dilute their political power. Justice Department lawyers have also helped ensure compliance with Motor Voter, by bringing lawsuits, or threatening to do so, against numerous states that appeared to be violating the law’s requirement to make registration accessible.
To be sure, Keyssar, the voting-rights historian, noted that both the Motor Voter Act and HAVA had restrictive elements. Motor Voter required states to regularly remove ineligible voters from the rolls — something voting rights advocates fear can lead to eligible voters also being removed — and, to win GOP support, HAVA imposed a voter ID requirement for some people registering to vote by mail.
And of course, some administrations and members of Congress over the years have been hostile to voting rights, at least privately.
As a young lawyer in the Reagan Justice Department, John Roberts, now the Chief Justice of the U.S. Supreme Court, famously wrote a memo that sought to weaken the VRA by arguing for a narrower definition of what constitutes illegal racial discrimination in voting. And during the George W. Bush administration, the Justice Department fired several U.S. attorneys in part for declining to prosecute voter fraud cases.
Still, Washington’s basic public orientation as a defender of voting rights remained largely in place. Federal prosecutors continued to bring voting rights cases in response to blatant vote suppression and vote dilution schemes targeting minority voters.
And, when lawmakers reauthorized the VRA in 2006 by a vote of 390-to-33 in the House and 98-to-0 in the Senate, the GOP controlled both chambers.
Repealing the 20th century. Now, some experts see the SAVE Act as a direct effort to reverse the pro-voting laws of the second half of the 20th century.
Justin Levitt, a professor of constitutional law at Loyola Marymount University and a former deputy assistant attorney general at the Department of Justice, described the bill, with its proof of citizenship requirement for voter registration, as effectively an attempt to undo the Motor Voter law.
“It would seriously impede the convenience that people have come to count on and the operative concept that registration should be easy for voters — that it should be easy to vote and hard to cheat,” said Levitt, using a slogan, perhaps with knowing irony, that’s become a favorite of Republican officials looking to tighten voting rules.
Wilentz, the American history scholar, thinks the measure strikes at even more fundamental voting protections.
“It’s the latest attempt to gut the voting-rights advances that were made in the 1960s,” Wilentz said, adding that he sees the SAVE Act as more dangerous, even, than the Jim-Crow-era voter suppression laws used in the South.
“Because it’s nationwide,” Wilentz said. “It’s not just local officials doing this.”
Morales-Doyle of the Brennan Center stressed the SAVE Act’s unprecedented broad reach across different demographics.
“When you’re potentially disenfranchising tens of millions of people, you’re obviously talking about people of all parties and all walks of life in every part of the country,” he said. “If this becomes law, it will be a new low for Congress.”
Matt Cohen is a senior reporter and Jacob Knutson at Democracy Docket, a digital news platform dedicated to information, analysis and opinion about voting rights and elections in the courts. You can subscribe to their newsletter here.
Image: Photo illustration by The Atlantic.