Supreme Court restores expanded SAVE voter checks while appeal continues

The US Supreme Court on September 25 allowed the Trump administration to resume using an expanded federal system that helps states check voters’ citizenship. Its order pauses a lower-court ruling that had set aside the modified Systematic Alien Verification for Entitlements program, known as SAVE. The decision matters for election officials and voters because states can again seek bulk checks using federal records, while the legal challenge continues.

The stay is temporary. It remains in effect while an appeal proceeds in the US Court of Appeals for the DC Circuit and, if sought on time, while the Supreme Court considers a request for further review. The justices did not issue a final judgment on whether the expanded program is lawful. The order also does not establish how many voters will be checked or asked to provide documents.

What the order permits

SAVE began in 1986 as a way for agencies to verify citizenship or immigration status when assessing eligibility for public benefits. States have also used it to check voter eligibility. The modified system incorporates Social Security Administration information and permits state and local authorities to submit identifying information in bulk. SAVE can confirm citizenship or indicate that more information is needed.

According to the Court’s account of the process, when SAVE cannot confirm someone’s citizenship, the relevant agency must contact that person and request proof for registration or continued registration. A database flag therefore calls for a further step; it does not, by itself, establish that a person is ineligible. How officials investigate and act on those results has practical consequences for voters asked to prove their status.

In granting the stay, the Supreme Court’s majority said the challengers’ claims under the Social Security Act, Privacy Act and Administrative Procedure Act likely lacked merit. It reasoned that federal law likely authorized the information-sharing arrangement. Those conclusions were made while considering interim relief; the underlying appeal still has to be resolved under the order’s terms.

A limit before the midterms

The Court pointed to a federal rule requiring states to complete systematic programs to remove ineligible voters at least 90 days before a federal primary or general election. It said that rule limits the stay’s potential impact ahead of the midterms, while inquiries into individual voters remain possible during that period. The justices expressly left open whether the 90-day rule bars programs to cancel noncitizens’ registrations within that window, saying the issue had not been presented and briefed in this case.

Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan dissented. Jackson warned that burdening or disenfranchising even a few eligible voters would outweigh the harm the government claimed from being unable to use its preferred system. Her concern centers on what can happen when an uncertain database result triggers a demand for proof from a lawful voter.

What earlier checks found

Independent reporting by The Texas Tribune and ProPublica documented mistakes in SAVE results before this order. Their review found that more than half of 74 voters flagged in Boone County, Missouri, were citizens. In Texas, the newsrooms identified at least 87 voters across 29 counties who had been wrongly identified as potential noncitizens. These are findings from particular places, not a national error rate.

The same reporting found that Missouri officials had temporarily made some flagged voters unable to vote before confirming their status. In Texas, county election officials were directed to seek proof of citizenship and remove voters who did not respond. The newsrooms also reported that the Department of Homeland Security had corrected information sent to at least five states after SAVE misidentified voters. Their account shows why the steps taken after a flag matter as much as the initial search.

One Texas example was Sofia Minotti, a citizen born in Argentina who was among 84 Denton County voters flagged as potential noncitizens. She and 11 others subsequently provided proof of citizenship, according to The Texas Tribune and ProPublica. That makes the confirmed error share at least 14% for the flagged group in that county. It cannot be used to estimate the system’s error rate across the country.

The newsrooms reported that seven states had disclosed results of checks covering about 35 million registered voters. SAVE identified roughly 4,200 people, or about 0.01% of those registered voters, as noncitizens. Those figures describe people flagged by searches, rather than verified cases of unlawful voting. Brian Broderick, the federal official overseeing SAVE verification, acknowledged to the newsrooms that the system cannot always locate current citizenship information for people born outside the United States. He said states decide how to use its results.

What remains unresolved

The nationwide error rate for the expanded system is not publicly known, Reuters reported. The Supreme Court order leaves the appeal and the disputed reach of the 90-day rule unresolved. It also provides no count of states that will restart bulk checks or voters who may receive requests for proof. Those questions will determine how widely the restored system affects registration in practice.

The ruling follows another recent Supreme Court decision affecting election administration. Readers can find that separate case in NewsJaws’ report on the Court’s mail-ballot ruling. For SAVE, the immediate change is that the federal government may again operate the expanded checks while the courts continue to consider the lawsuit.