The John Locke Foundation published a review of President Donald Trump’s election executive order on March 26. We noted in the review that “the president is nowhere mentioned” in the Constitution’s Elections Clause, meaning that the Framers did not envision a role for the president in setting election policy.
For review, here is the full text of the Elections Clause (Article I, Section 4, Clause 1):
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Despite that, President Trump’s order will impose several election policy changes on states (if it survives the inevitable lawsuits) since Congress has given the executive branch some of its authority over the years.
Congress steps into the noncitizen voting debate
The Constitution provides Congress with the authority to set regulations for elections for federal office, although that is properly understood as a backup to the states’ authority on election policy. So, election policy is on a surer constitutional footing when coming from Congress rather than the president.
To that end, Congress is considering the Safeguard American Voter Eligibility (SAVE) Act, which is designed to:
amend the National Voter Registration Act of 1993 to require proof of United States citizenship to register an individual to vote in elections for Federal office, and for other purposes.
The “other purposes” here are measures to support the bill’s main provision, which requires proof of citizenship to register to vote.
While North Carolina’s constitution requires citizenship to vote (after a 2024 amendment), there is no documentary requirement to prove citizenship (see image below), so the SAVE Act would change policy in North Carolina if passed.
Citizenship is already required to vote in federal elections, although, again, there is no requirement to document citizenship. In fact, current federal law makes it difficult, if not functionally impossible, for states to require proof of citizenship to register to vote. The Supreme Court ruled in 2024 that the Voter Registration Act of 1993 (VRA, also known as “motor voter”) bans any state from requiring documentary proof of citizenship from anyone registering with a federal form. The same law requires states to accept the federal form.
In addition, the bill would require states to have a plan to remove noncitizens from voter rolls and allow a “private right of action” (AKA: lawsuits) against election officials who register people to vote who do not present proof of citizenship. That feature would undoubtedly be used in the lawsuit-happy North Carolina election space.
It is good to ensure that only citizens can vote. The question is whether requiring proof of citizenship is the most practical solution. In any case, unlike executive orders, at least we know Congress has the constitutional authority to set federal election policy.
