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Minnesota Law Now is a new podcast from the University of Minnesota Law School that brings together some of today’s most insightful legal scholars in conversation about law, policy, current events, and the ideas that shape our world.
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Welcome to Minnesota Law Now.
I'm William McGeveran, Dean
and William S. Pattee
Professor of Law here
at the University
of Minnesota Law School.
Today, we're talking about
the SAVE Act currently
pending in Congress,
what it could mean
not just for voting rights
but for participation
in American life more broadly.
I'm joined by two of my brilliant
Minnesota Law colleagues.
Professor Jill Hasday
is a distinguished McKnight
University Professor
and Centennial Professor of Law.
She's a leading scholar
of constitutional law
and anti-discrimination law.
Charlotte Garden is Associate Dean
for Academic Affairs
and the Gray, Plant, Mooty,
Mooty & Bennett Professor
of Law here at Minnesota Law.
She's a preeminent scholar
in labor and employment law.
Jill, Charlotte, welcome.
Thank you.
Thanks for having us.
I want to start with a basic
understanding of what the SAVE
Act is and what it would do.
Charlotte, maybe you can just start
us off with some explanation.
Yes, sure.
There have been a few
different versions
of this legislation floating around.
There is one that passed the House.
It has four main parts.
One, and this is maybe the one
that people have heard
about the most,
has to do with voter registration.
It requires what the statute
calls documentary
proof of citizenship
in order to register to vote.
That has to be presented in person.
It means for most people
either a passport,
which lots of people don't have,
or a photo ID
plus a birth certificate,
which also lots of people don't have.
Second, there's
a voter ID requirement.
It's a very strict one.
It's stricter than any voter ID
requirement in any state
except, I think, one.
It would require voters
to produce a valid driver's license
or a non-driver ID issued by the DMV,
a passport, a military ID,
and certain tribal IDs.
Note that there are many forms of ID
that people commonly
have that are not on that list,
including student IDs.
If you vote by mail, which I used
to do in Washington State,
some states have almost
entirely vote by mail,
you have to include
a photocopy of your qualifying ID.
Third, there is a state and federal
information sharing provision.
It requires states
to send their voter rolls
to the federal government in order
to have them checked
for potential non-citizens.
That will lead to periodic
purges of voter rolls.
Then there are criminal penalties
for election officials
who allow voter
registration without the qualifying
documentary proof of citizenship.
A lot going on there.
Each one of those
is tremendously significant.
Jill, what problem do the proponents
of this law say
they're trying to solve?
This legislation is aimed
at a problem that doesn't exist.
The theoretical problem
is non-citizens attempting
to vote in US elections,
but every study
that's ever been done suggests
that is a vanishingly
rare phenomenon.
For instance,
there was this 2016 study.
They asked electors in 12 states
covering 23.5 million votes,
"How many incidents did you have
of non-citizens attempting to vote?"
There were 30 incidents,
which is 0.001%.
I'll just say
many of those incidents,
maybe even most of them,
the person is confused.
It's election.
They think they can vote
and they don't realize.
It's not some malicious plot.
It raises all kinds of issues.
We're going to try and go
through a bunch of them.
I wanted to start, though,
with the constitutional stakes.
Jill, you've talked in other places
about some of the core
constitutional concerns
that you believe
the legislation raises.
What stand out to you
as the biggest potential
constitutional problems here?
Unfortunately, as the Supreme Court
has interpreted the Constitution,
the arguments aren't as strong
as they might be.
I actually want to start in 1875 with
a case called Minor v. Happersett.
Virginia Minor was the head
of women's suffrage in Missouri.
After the 14th Amendment was
a bitter disappointment
for women's suffragists.
They had hoped to be
enfranchised explicitly,
they weren't.
Virginia Minor and other
suffragists came up
with this new idea,
which is they claim,
"We're citizens.
One of the inherent rights
of US citizenship
is the right to vote."
They go to the Supreme Court.
Her husband is her lawyer.
He's also a feminist, so
it's also a feminist marriage story.
The Supreme Court agrees
that women are citizens,
so okay, that's something,
but say there's no right
to vote inherent in citizenship.
Minor v. Happersett,
which is entangled
in anti-suffragist reasoning,
remains the law to this day.
There is no affirmative right
to vote in the US Constitution.
There are certain reasons
for disenfranchisement
which are unconstitutional,
like the 15th Amendment prohibits
race-based disenfranchisement.
The 19th Amendment prohibits
sex-based disenfranchisement,
but there's not an affirmative right
to vote in the Constitution,
which I think many people
are surprised to learn.
Sure.
When you look at
the constitutional issues
that you could raise about this bill,
we talked a little bit about
equal protection concerns,
do you see equal protection
concerns in the SAVE Act?
I have enormous equal protection
concerns about the SAVE Act.
It would disproportionately
disenfranchise women
and people of color.
Unfortunately, the way
the Supreme Court has interpreted
the 14th Amendment makes it very hard
to pursue those claims in court.
The Supreme Court has interpreted
the constitutional guarantee
of equality very narrowly
to really focus on statutes
that explicitly distinguish
based on race or sex
or some protected class.
If a law is facially neutral,
as this law is,
it never uses the word sex or race,
the court says, "We'll
only apply some heightened
level of scrutiny if you can show
the law was passed
basically because of animus,
not simply in spite of,
but in part because
of its adverse effects."
Realistically, it is very hard to get
that kind of documentary evidence.
Malice, so the court would apply
a very low level of scrutiny,
which is called
rational basis review.
Basically, could any legislature
think this was reasonable?
Yes, they're really concerned about
those 30 out of 12 million cases.
It's harder to challenge
it constitutionally
than you would think.
Sure.
As is often the case,
the difference between
the intent requirement
and the effect requirement
makes a huge difference
in a constitutional argument.
Yes.
I think this legislation
is a huge and powerful example
of the downsides
of the court's narrow focus
on explicitly sex-based or race-based
legislation and decision
to essentially ignore
facial and neutral action.
Let's move to that point exactly
now because among the groups
that could potentially
be disproportionately
affected by these requirements,
as you said, are women.
Maybe you can start off by explaining
a little bit about
why that would be the case.
As Charlotte discussed,
there's a variety
of ways you can establish
your citizenship.
Some people have a passport.
Some people have an expensive
and special driver's license
that confers US citizenship,
but your ordinary driver's
license is not sufficient.
You have to supplement
an ordinary driver's license
with some other proof.
For instance, you could supplement it
under the statute with
a certified birth certificate.
First thing I'll say, it has
to be certified with a stamp on it.
Also, the name
on the birth certificate
has to match the name
on your driver's license.
There was a recent survey,
2023, 80% of women
in different sex marriages
take their husband's name,
an additional 5% hyphenate,
meaning 85% of married
women don't have birth certificates
that match their driver's license.
That whole route
to establishing citizenship
is just not available
disproportionately to women.
You've talked about how many women
don't have driver's licenses
and birth certificates that match.
More broadly, what kinds of scale
are we talking about about women
and others lacking
the right documentation
to satisfy those requirements?
There was a national
survey that found 9.1%
of US citizens of voting age,
which translates
into 21.3 million people,
lack ready access to one
of the documents that's required.
At least 3.8 million people
simply don't have those documents.
There's no way to get
those documents.
This statute would effectively
disenfranchise millions of Americans.
I guess the follow-up question
is there are probably patterns
in the kinds of people who find
themselves in those situations.
Yes.
For instance, the same survey found
that 11% of American citizens
of color would be unable
to find these documents.
For white Americans,
in contrast, the figure was 8%.
One immediate way
to think about it is about half
of Americans have passports.
They're disproportionately wealthy.
Passports are expensive,
and you usually get them
because you're going
on an international trip,
which costs a lot of money.
Sure.
We've been talking about voting,
which is the asserted
goal of the SAVE Act,
but that's not the only place
where documentation matters.
How do you see the narratives here
overlapping with
your area of specialty,
work law and employment law?
One big-picture answer
is that the same narratives
are at work here
as are at work when people claim
that immigration hurts US workers.
In both situations,
we are seeing similar scapegoating
of immigrants for social problems,
including imaginary social problems.
That is the thing
with the SAVE Act, especially.
In the work context,
you've probably heard people
make the claim that
Americans would get paid
more if immigrants
weren't competing for jobs.
That is not true, but it doesn't mean
that can't sound convincing
or convince people
in the moment to support
anti-immigration policies.
Another parallel is
the deployment of that narrative
as a purported justification
for other policy initiatives.
Things like revoking
work authorizations
or making it harder for universities
to admit non-US students.
Small scale, there is also just
this really direct parallel
that asks what should have to happen
for somebody to prove
authorization to do something,
to work or to vote.
In the employment context,
that often looks
like a policy debate
about whether employers
should have to use a system called
E-Verify in addition
to the normal document check
that you've probably done
when you started
a job where you fill out
an I-9 and your employer
photocopies your documents.
About half of states require
E-Verify for some or all employers.
In the Trump administration,
we're seeing a push, both to mandate
that more employers use E-Verify,
but also the same
administration claiming
that E-Verify isn't very accurate
and there is still
this problem with people
working without authorization.
Note the tension.
In the Trump administration,
we are seeing both a push
to have employers use E-Verify,
but also claims
that E-Verify isn't effective
and that there are big problems
with non-authorized workers working.
The tension there, obviously,
is something that is being
used to ratchet up
the pressure on or a push towards
a more restrictive
immigration policy.
I wonder how
the documentary requirements
in the SAVE Act compare
to those that exist in work law,
both the papers you have to bring
and then the possibility
of using this E-Verify
database afterwards.
The SAVE Act is much stricter
than what is required
in the workplace context.
Among other reasons,
there are lots of non-citizens
who are authorized to work in the US.
The SAVE Act imposes
just a really significant hurdle
in terms of the restrictions
on the specific kinds
of documents you can use.
We've talked about
the participation in civic life
that comes with the ability to vote
and the ways it might be restricted.
Those kinds of requirements
sound like they would restrain
participation in economic life.
What kind of broader
economic consequences
do those kinds of issues raise
in the economy as we were talking
about in the democracy?
Well, I would say
that the economic realm
and the democratic realm
are really closely linked here.
One likelihood, and one thing
I think we're already seeing,
is that the Trump
administration's crackdown
on immigration is making
immigrant workers fearful,
afraid to poke their head up,
both because of just,
for unauthorized workers,
the possibility
of immigration enforcement,
and even for authorized workers,
the possibility
that the administration
will revoke their authorizations.
We've seen that in the context
of the administration's what is often
called the ideological
deportation policy,
where workers have their work
authorization revoked
because of something
they've expressed on social media
that the administration
disagrees with.
Likewise, the possibility
of maybe reasonless
revocation of work authorization
for individual workers
or groups of workers.
Given all that, you can
understand why somebody
would be afraid to say,
"I am being paid
less than the minimum wage,"
which is an absolutely
rampant problem,
especially among employers
of unauthorized immigrants.
Also, is an immigrant worker,
whether authorized or not,
going to be willing
to join a union or to work
collectively with their colleagues
to solve some kind
of workplace problem
if they are afraid
that their employer will call
immigration enforcement and try
to have their work authorization
revoked or try to have them deported?
There's a really direct link there,
I think, between economic
and civic life.
Sometimes people call
unions schools of democracy.
It's really common
for workers who are active
in their unions to go on to be active
in US political life in other ways.
There's a real cost
there that straddles the economy
and our broader
participatory democracy.
Right.
I want to underscore
and clarify one thing
that's latent in your answer there.
You might think of this as a binary.
You either are authorized to work
in the US or you're not authorized
to work in the US.
I think an important part
of what you're saying
is there's lots of people
who have authorization
to work in the US,
but that is insecure
or is contingent in certain ways.
The chilling effect
that you're talking
about really would affect lots
of people who are otherwise
currently authorized
to work, wouldn't it?
Exactly.
Yes.
The fear is, "If I come
to the attention of the authorities,
they'll try to revoke
my work authorization."
Right.
It just goes without saying,
but I'll say it anyway,
this is obviously going
to affect immigrants,
which is also going
to have a disproportionate
racial and national origin
effect in various ways.
Absolutely.
When you look at all
of this workforce participation issue
that you're talking about,
that could also have some economic
ramifications, I suppose.
Yes, absolutely.
The notion that immigration is bad
for US workers just isn't born out.
I'm not a labor economist,
but I follow a bunch of them
on social media, I guess.
Next best thing.
They broadly agree
that immigration grows the economy,
that it does not meaningfully
harm the wages of US workers,
that immigrants hold up
the childcare
and home health sectors,
which have a host
of important ripple effects
for both immigrant
and US citizen workers.
Immigrants help revitalize stagnant
or declining towns and cities.
In particular,
since we're in Minnesota,
Operation Metro Surge was very bad
for our economy
here in the Twin Cities.
There is a recent report
from North Star Policy Action,
estimates $106 million in lost
wages in the Twin Cities alone.
Think about the ripple
effects that has.
That $106 million in lost
wages didn't then get
circulated in the economy
as workers bought things.
They bought groceries
or bought restaurant
meals or paid their rent.
Workers who aren't being
paid or not spending
and people who
are depending on daycare
or elder care to be able to go
work themselves
can't if it's not available.
First and foremost,
Operation Metro Surge
was a moral travesty,
but also the economic
effects are real and ongoing.
I don't suppose
there's any constitutional
argument there either, Jill?
Well, unfortunately,
the Supreme Court has
interpreted immigration law
to give Congress
what they call plenary
authority over immigration.
Even actually like an explicitly
racist immigration law,
the Supreme Court has never gone back
and said that is unconstitutional.
I feel like that has
long been a simmering
problem in American
constitutional law,
and maybe it's come to the forefront
a little more at this moment.
That's one thing I want to say.
The second thing I want to say
is a lot of immigration
enforcement, at least,
is in the form of facial neutrality.
Even if the court was more interested
in challenging the constitutionality
of immigration rules,
if it keeps its lock on explicit,
say, race discrimination,
that's often not
in the language of the statute.
Sure.
Do you have any sense of assuming
that the SAVE Act were to pass,
which it's unclear
whether it can right now,
but if it did pass,
would you anticipate,
notwithstanding the obstacles,
that there would be legal
challenges to it?
I'm sure there are going
to be legal challenges.
Even under the Supreme
Court's stilted
view of the equal
protection argument,
it's possible to argue
that it was motivated by animus.
I suspect the response
will be it was motivated
by this concern with voter fraud,
or even with a concern
for partisan advantage.
The Supreme Court has said
in a number of voting cases,
"Well, if you were just
trying to win for your party,
that's okay, because that's
not race discrimination."
One of the ironies of the SAVE Act
is that Republicans
are mainly pushing it.
It's actually not clear
that it would disproportionately
benefit Republicans.
Time will tell.
There are some Republican
opponents in Congress,
I think, that are very focused on it.
It's not actually clear who's
going to have the advantage.
We've talked about women
and we've talked about immigrants,
but another population sometimes
indicated as having difficulties
with these kinds of documentation
requirements are older people, right?
Older people.
Also, there's a huge class bias,
which the Supreme Court is not
interested in constitutionally.
Clearly, when you think
about who has a passport,
who has ready access to these,
a lot of that is about
having financial and just human
capital resources to negotiate
the bureaucracy
and to have the time to do it.
Rural voters as well, right?
Lisa Murkowski has
been publicly opposing
the SAVE Act because
for many Alaskans,
they'll have to fly in order
to be able to register to vote,
to be able to present
their documents in person.
Right, because of how
far-flung Alaska is
and there's places
that don't have any roads at all.
The voting by mail
has an effect disproportionately
on certain kinds of voters.
Rural and older voters
might be some of those.
We've talked about
economic participation.
We've talked about
the immigration ramifications.
We've talked about
the gender ramifications
of these kinds
of documentary requirements,
whether in the SAVE
Act or in other laws.
In some ways,
this is about who belongs
in the American polity, I suppose.
How do you think about this question
against some of the larger questions
of discrimination and participation
that each of you studies?
Is this of a piece with lots
of other things you see?
Is this a departure
in a more challenging direction?
To me, one of the strains
of American history
is we have a long
history of conflicts
over voting and voter suppression.
This is very much of a piece.
I think America does
have a voting problem,
but our main voting problem
is not enough citizens vote.
In the last presidential election,
only 73.6% of the voting
age population was registered.
Only 65.3% voted.
To me, it's very much of a piece.
There's a long history
of voter suppression,
but it goes in exactly
the wrong direction.
To the extent we want
to change voting laws,
it should be trying
to get that number up
to 100% so every US citizen votes.
How about you, Charlotte?
I think we are at a moment
of intense backlash politics
against the idea of America
as an inclusive democracy.
The push for the Save Act
is a particularly acute instance
of that backlash politics.
When you think about this,
where's the path
to the future for people who,
like you, have a lot
of concerns about
these kinds of policy
interventions around identification,
documentation, identity, belonging?
Where's the energy for the future
to respond to what you're describing,
Charlotte, as backlash politics?
I think there has been quite a bit
of resistance to the Save Act.
What I'd like to say
is the way to be certain
you're going to lose is to give up.
The only thing
to do is to keep pushing.
I think there's been quite a bit
of pushback to the Save Act.
It's been pretty effective
so far in getting the message out
this is not a technical amendment,
but this is really about
disenfranchising
literally millions of US citizens.
What do you think, Charlotte?
I was going to say
something very similar,
that when people learn
what the Save Act does,
they mostly hate it.
That seems to be
a silver lining here.
When you ask people
a question that sort of sounds in,
"Do you believe in democracy?
Do you believe
that people who are eligible
to vote should be able to vote?"
they mostly think the answer is yes.
Which has two potential implications.
One is the Save Act might not pass.
It does not seem
to have the votes as of now.
Number two, it might be the seeds
of some of the future
thinking about democracy
that both of you would hope for.
I certainly hope that people,
if they don't like the Save Act,
not only do they call
their congressman,
but what a good reason
to vote this year, right?
That'll show them.
That'll show them.
I just want to step back and do
what we often do at the end
of these episodes
so far and just ask
people to synthesize
what we've been talking
about as one big picture point.
As you look at the Save
Act itself in particular,
but also all the broad implications
we've teased out about
discrimination, about belonging,
about what this says
about our politics now,
if we were going
to have our listeners
walk away with one big thought,
what do you think
you'd have them walk away with?
The most important issue
facing us today
is whether we commit
ourselves to being an inclusive,
interracial democracy
or whether we turn
away from that vision of America.
Well, it's clear that
the Save Act raises
fundamental questions
that go well beyond its borders,
well beyond voting,
about what it takes
to be recognized and included
in the American society.
I want to thank my
extraordinary colleagues,
Jill Hasday and Charlotte Garden.
I appreciate you both being here.
Thanks to you for listening
to Minnesota Law Now.
Thank you.
Thank you.
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