Policy Memo
Topline
Under the Qualifications Clauses of the U.S. Constitution, states determine who is eligible to vote in federal elections. The Election Assistance Commission's refusal to approve state instructions requiring verification of citizenship on the federal voter registration form is arbitrary and capricious, and the Supreme Court should clarify that Arizona v. Inter Tribal Council of Arizona does not stop states from verifying the citizenship of applicants.
The Edwin Meese III Institute for the Rule of Law
Over the last several years, a number of states have become concerned that aliens1 have been registering and voting in their state in both state and federal elections. To address this problem, these states have passed laws and implemented policies requiring individuals to provide proof of citizenship when registering to vote in either state or federal elections. The U.S. Election Assistance Commission (EAC), which was established by the Help America Vote Act of 2002, is responsible for, among other things, maintaining the “Federal Voter Registration Form”2 created by the National Voter Registration Act of 1993 (NVRA).3 Thus far, the EAC has thumbed its nose at those states seeking to prevent alien voting by refusing to change the state-specific instructions for individuals using the “Federal Voter Registration Form”4 to accommodate state eligibility requirements. In addition to being arbitrary and capricious, the EAC’s refusal violates both federal law and the U.S. Constitution.
To the extent the NVRA has been misinterpreted by the EAC and the courts to interfere with a state’s determination of voter eligibility, such interference renders that portion of the statute unconstitutional. To avoid such a finding, the only proper interpretation of the NVRA would require states to accept the federal form as part of the registration process, while leaving them free to request whatever other information is required under that state’s law to determine voter eligibility, including proof of citizenship. As the Supreme Court concluded in 2013, the constitutional authority of states to determine voter qualifications for state and federal elections “is of little value without the power to enforce those requirements.”5
While Congress has ultimate authority in the Elections Clause over the “Times, Places and Manner of holding Elections” for Congress,6 it does not have the power to define eligibility – the qualifications needed to be able to vote in a federal election. That authority is given to the states in the Qualifications Clauses: voters (electors) in federal congressional elections “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”7
Similarly, while Congress can “determine the Time of chusing the Electors, and Day on which they shall give their Votes,”8 Congress does not have the authority to determine the qualifications and eligibility of an individual to vote in a presidential election. Instead, as with congressional elections, that power is given to the states, which “shall appoint, in such Manner as the Legislature thereof may direct,” the members of the Electoral College who determine who will be the president of the United States.9
This was confirmed by the Supreme Court in the 2013 Inter Tribal case when it held that determining the qualifications of voters “forms no part of the power to be conferred upon the national government.”10 That is why constitutional amendments were necessary to change eligibility requirements and enable racial minorities, women, and adults 18 years of age and older to vote in elections, as well as ban certain practices such as poll taxes.11
The NVRA was enacted to “enhance the participation of eligible citizens” in federal elections and to “protect the integrity of the electoral process.”12 While establishing certain voter registration processes and procedures for federal elections, those processes and procedures are in addition to “any other method of voter registration provided for under State law.”13 The federal voter registration form established by the NVRA is regulated by the EAC, which is charged with developing the form “in consultation with the chief election officers of the States.”14
The NVRA directs that the federal form may only contain such “identifying information. . .as is necessary to enable” state officials to determine the eligibility of voters. Every state “shall accept and use the mail voter registration application” developed by the EAC to register voters “in elections for Federal office.”15 This is an important point because some election officials seem to mistakenly believe that they have to use the federal form to register individuals for state as well as federal elections. But that is not correct under the plain terms of the statute. In fact, the NVRA specifically allow states – in addition to using the federal form – to use their own state voter registration forms for federal elections: “a State may develop and use a mail voter registration form that meets all of the criteria stated in [the NVRA for the federal form] for the registration of voters in elections for federal office.”16
Thus, the requirements and limitations of the NVRA do not apply to the registration process for elections for state and local offices. However, because virtually all of the states maintain only one statewide voter registration system for economic or administrative considerations, they have applied these requirements and limitations to their state elections even though they are not required to do so.
According to the EAC webpage, the federal “National Mail Voter Registration Form” can be “used to register U.S. citizens to vote, to update registration information due to a change of name, make a change of address or to register with a political party.”17 The EAC fails to notify applicants that, under the governing statute, the form only applies to federal elections even though states all accept the form for state registration, too. The EAC’s instructions, however, do warn that an applicant “must follow the state-specific instructions listed for your state” when using the federal form. The EAC also informs election officials that any “[r]equests for updates to the state-specific instructions” should be sent to the executive director of the EAC.18
In addition to information such as the applicant’s name, home address, date of birth, and other information, the form asks applicants if they are “a citizen of the United States of America” and the oath on the form includes the applicant confirming that “I am a United States citizen” and “meet the eligibility requirements of my state.” The state-specific instructions attached to the federal form by the EAC vary from state to state, informing applicants of different state deadlines for becoming registered prior to an election, different eligibility standards for convicted felons, whether applicants must identify their political part or race/ethnicity, and other variations. The EAC has refused, however, to approve any state instructions notifying applicants that they must provide proof-of-citizenship in states that have implemented state laws making that a condition of eligibility.
The argument that states must simply “accept and use” the federal voter registration form and cannot engage in any other verification of a voter’s eligibility not only defies common sense, but it also violates another federal law that was passed after the NVRA. The Help America Vote Act of 2002 provides that states must “ensure that voter registration records in the State are accurate and are updated regularly.” That includes a requirement that state officials compare voter registration information with the state’s motor vehicle agency database “to verify the accuracy of the information provided on applications for voter registration,” and also enter into an agreement with the Social Security Administration “for the purpose of verifying applicable information.”19 Ensuring the “accuracy” of voter registration necessarily requires the ability to verify all the requirements of eligibility, including citizenship.
The key court decision on the use of the federal voter registration form is a 2013 decision by the U.S. Supreme Court in Arizona v. Inter Tribal Council of Arizona, Inc.20 In 2004, Arizona voters approved Proposition 200, which required residents of the state to provide proof-of-citizenship when registering to vote as well as to present identification when voting without distinguishing between federal and state elections. The citizenship requirement could be satisfied with a photocopy of a passport or birth certificate; a driver’s license number if the driver’s citizenship was verified by the issuing agency; evidence of naturalization; tribal identification; or any other documents or proof “established pursuant to the Immigration Reform and Control Act of 1986.”21
In a 7-to-2 decision by Justice Antonin Scalia, the Court held that the NVRA “precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself” because the statute requires states to “accept and use” the form.22 This has been misinterpreted by some, including the Ninth Circuit, to mean that states may not implement any type of proof-of-citizenship requirement for registration.23
However, the opinion went on to note that the government had conceded that a state “may request that the EAC alter the Federal Form to include information the State deems necessary to determine eligibility.”24 When Arizona asked the EAC in 2005 to alter its state instructions, the EAC “divided 2-to-2 on the request by Arizona to include the evidence-of-citizenship requirements among the state-specific instructions on the Federal Form, which meant no action could be taken” because the EAC is a four-member commission and the votes of three commissioners are required to approve any action.25 The EAC has considered this issue multiple times since 2005, all resulting in 2-to-2 votes, and failed to act on a petition filed in 2025 requesting the agency to initiate a rulemaking to amend the federal form to require documentary proof of citizenship.26
The Supreme Court in Inter Tribal noted that Arizona did not challenge the 2005 failure to approve its request under the Administrative Procedure Act, but said that if the agency’s “inaction” persisted, Arizona could renew its request or file suit and “establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.” The Court added that Arizona could also “assert (as it has argued here) that it would be arbitrary for the EAC to refuse to include Arizona’s instructions when it has accepted a similar instruction requested by Louisiana.”27
The Louisiana instruction the EAC approved that the Court was referencing was a notice requiring “applicants who lack a driver’s license, ID card, or Social Security number to attach additional documentation to the completed Federal Form.”28 The documentation listed in the instruction includes “(a) copy of a current and valid photo identification; or (b) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of applicant.”
The EAC’s status is the same today as it was when the Inter Tribal opinion was issued — the agency lacks a quorum of commissioners able to make any decision about this issue.29 As the opinion noted in footnote 10:
The EAC currently lacks a quorum — Indeed the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to ‘compel agency action unlawfully withheld or unreasonably delayed.’ 5 U.S.C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking. If the answer to that is no, Arzona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form.
Justices Clarence Thomas and Samuel Alito both dissented. As Thomas pointed out, the “plain text and the history of the Voter Qualifications Clause…and the Seventeenth Amendment authorize States to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied.”30 To avoid creating a constitutional problem with the NVRA provision, Thomas argued that the correct interpretation of the “accept and use” language is to only require states “to accept and use the form as part of its voter registration process, leaving the State free to request whatever additional information it determines is necessary to ensure that voters meet the qualifications it has the constitutional authority to establish.”31 Otherwise, Congress is unconstitutionally interfering in the authority of states to determine the qualifications of voters.
Alito made similar points about the fallacies in the majority opinion. The majority’s conclusion, he said, is “not required by the NVRA. Proper respect for the constitutional authority of the States demands a clear indication of a congressional intent to pre-empt state laws enforcing voter qualifications. And while the relevant provisions of the Act are hardly models of clarity, their best reading is that the States need not treat the federal form as a complete voter registration application.”32
Alito accused the Court of reading “an ambiguous federal statute in a way that brushes aside the constitutional authority of the States and produces truly strange results.”33 He said:
The Court interprets one provision [of the NVRA] to mean that, if an applicant fills out the federal form, a State must register the applicant without requiring proof of citizenship. But the Court does not question Arizona’s authority under another provision of the NVRA…to create its own application form that demands proof of citizenship; nor does the Court dispute Arizona’s right to refuse to register an applicant who submits that form without the requisite proof. I find it very hard to believe that this is what Congress had in mind.34
The majority’s erroneous interpretation, Alito pointed out, also damages the “default” authority of states under the Elections Clause to regulate state and local elections. He recognized that, as a practical matter, “it would be very burdensome for a State to maintain separate federal and state registration processes with separate federal and state voters rolls.” As a result, “any federal regulation in this area is likely to displace not only state control of federal elections but also state control of state and local elections.”35 That prediction from more than a decade ago has proven to be true. As Alito concluded, the Court’s reading of the NVRA “is atextual and makes little sense” and “a federal law that frustrates a State’s ability to enforce its voter qualifications would be constitutionally suspect.”36
As the majority opinion noted, states retain the ability to request that the EAC approve a state-specific proof-of-citizenship requirement and can sue the agency if it refuses to do so (or is unable to do so due to the lack of a quorum). The state of Louisiana is now following the path as laid out by the Court in Inter Tribal. It filed a lawsuit on April 14, 2026, against the EAC. In its complaint, Louisiana says that the EAC’s refusal to allow it to implement its law requiring those “who register to vote provide information sufficient to ensure they are United States citizens” is “arbitrary and capricious” under the Administrative Procedure Act and that provisions in the NVRA “purporting to give the EAC this authority” are unconstitutional.37
Louisiana points out that it has been a requirement in Louisiana’s constitution since it became a state in 1812 that “eligibility to vote in any election has been conditioned upon United States Citizenship.”38 Despite that requirement, “non-citizens have improperly registered to vote in Louisiana and have unlawfully voted in State and Federal elections in Louisiana.” As a result, the state legislature enacted Act 500 in 2024 to require that each voter registration applicant “include with his application proof of United States citizenship.”39
Louisiana then submitted a request to the EAC to change the state-specific instructions for the federal voter registration to notify applicants of the new Louisiana requirement. It provided evidence to support the change, including the need to “utilize certain databases to assist state election officials with assessing the eligibility of voter registration applicants,” “Louisiana election statistical data,” and the fact “that many State and local elections in Louisiana are decided by very narrow margins.”40
It also informed the EAC that it had discovered that 403 aliens were illegally registered as of May 2025, of whom 83 had voted in past elections, casting 440 votes. Part of the evidence submitted to the EAC on close elections was that between 2021 and 2024, 363 state and local elections were decided by fewer than 30 votes, and 180 of those elections were decided by fewer than 15 votes.41
Louisiana notified the EAC that it was implementing a process that would “reduce the number of voter registration applicants who will receive a request” for additional information by requiring election officials who received registration forms to first check available state and federal databases to verify citizenship.42
According to the complaint, the EAC failed to approve Louisiana’s request in a 2-to-2 vote on Sept. 5, 2025. An additional vote on a modified request from Louisiana on Dec. 18, 2025, also failed on a 2-to-2 vote, strictly along partisan political lines with the two Republican commissioners voting to approve Louisiana’s request and the two Democratic commissioners voting to disapprove.43
After the EAC’s final action, Louisiana filed suit.
Louisiana, correctly in my view, argues in its lawsuit that the constitutional authority it is granted to determine the qualifications of voters in federal elections obviously “includes the right and obligation to request information” that the state “deems necessary to enable state election officials to assess the eligibility of voter registration applicants.”44 The Supreme Court itself has emphasized the importance of states ensuring that only eligible individuals are voting, which would include citizens, to protect the integrity of the election process:
There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process.45
And yet the current federal voter registration form only requires attestation of citizenship by an applicant and the EAC is preventing states from using other forms of information and documentation to verify citizenship. However, at the very same time, as Louisiana points out, the EAC allows verification of, and has approved state-specific instructions for, other information on the form. That includes the “name, date of birth, driver’s license number and/or social security number” of individuals registering to vote.46 States routinely — without objection by the EAC — ask for more information or documentation from a voter if there is a question about, or an issue with, the residential address an applicant provides to register to vote. And, as pointed out earlier, the Help America Vote Act actually requires state election officials to verify information on the voter registration form with other databases including state motor vehicle departments and the Social Security Administration.
As a result, Louisiana argues that the EAC’s refusal to allow it to implement its proof-of-citizenship requirement is arbitrary and capricious under the APA, as well as an abuse of discretion, particularly given the EAC’s approval of other requirements in Louisiana, Illinois, and Montana that applicants who use the federal form but do not have a driver’s license or social security number must provide proof of their identity by providing various other listed documents.47 The two EAC commissioners who voted to approve Louisiana’s state-specific instructions on citizenship, Don Palmer and Christy McCormick, stated that Louisiana had met the “necessity justification” required by the NVRA since approval of Louisiana’s new instructions “would improve the efficiency, accuracy, and overall integrity of the voter registration process to the benefit of the voter.”48
But the two Democratic commissioners who vote to disapprove Louisiana’s request disagreed, claiming that Louisiana’s request “fail[ed] to meet the standard of necessity.”49 In contrast to their mistaken assessment, there is considerable evidence that aliens have been illegally registering and voting in multiple states despite the unverified oath of citizenship they attest to on the federal form. Twenty-five states that have used the Department of Homeland Security’s SAVE database have found 28,000 aliens on their voter rolls.50
New Jersey admitted recently that 6,600 aliens were registered in the state due to a supposed “software glitch.”51 The Public Interest Legal Foundation (PILF), a nonpartisan, nonprofit that works on election integrity, has issued a series of reports following its review of state voter registration lists in which it found thousands of aliens registered in multiple states. PILF unsuccessfully litigated against Pennsylvania in 2018 trying to get the state to provide the exact number of aliens the state’s then-Secretary of State Robert Torres admitted had been registering to vote in the state for decades.52
If the NVRA is interpreted to allow the EAC to prevent Louisiana from implementing its state law outlining the process for verifying the citizenship of an individual who is registering to vote to determine that individual’s eligibility, then, the state argues, that provision of the law is “contrary to constitutional right, power, privilege, or immunity” under 5 U.S.C. § 706(2)(B), (C). This federal law authorizes courts to set aside agency actions that are unconstitutional or “in excess of statutory authority.”
What seems clearly unconstitutional is the supposed statutory authority given to federal officials — specifically, the commissioners on the EAC — to decide whether the process used by states to verify and determine the qualifications (in other words, their eligibility) of individuals attempting to register to vote is “necessary.” Given the fact that the Qualifications Clauses of the Constitution gives the states plenary authority to make that determination, Congress has no power to delegate approval and veto authority over that determination to what are essentially federal bureaucrats.
In response to Louisiana’s lawsuit, the U.S. Justice Department has taken a surprising stance. President Donald Trump himself has been pushing hard for the passage of the Safeguard American Voter Eligibility Act (SAVE Act), which would require proof of citizenship in federal elections.53 The president also terminated both of the Democratic commissioners, Thomas Hicks and Benjamin Hovland, who repeatedly voted against approving Louisiana’s request on citizenship verification. Yet on August 17, rather than conceding that Louisiana’s claim is valid and that it should be allowed to implement its state law, the Civil Division of the Department of Justice filed an answer denying that the EAC had acted improperly or that Louisiana’s “constitutional, statutory, or other rights were violated” and that Louisiana is entitled to any relief.54
Citizenship is a basic qualification to be eligible to vote in both state and federal elections under constitutional and statutory provisions in all 50 states and nationally. It is undisputed that states are given the constitutional authority to determine the qualifications of individuals voting in federal elections, limited only by constitutional amendments guaranteeing the right to vote to every American 18 years of age and older regardless of race or gender and other than felons in those states that remove the ability of felons to vote as authorized under Section 2 of the Fourteenth Amendment.
In order to be constitutional, the NVRA cannot be applied in a manner that prevents states from verifying the qualifications of voters, including their citizenship. The refusal of the EAC to approve state-specific instructions for states requiring proof or verification of citizenship is arbitrary and capricious and beyond its statutory authority, as well as an unlawful intrusion into the constitutional authority of the states.
The Supreme Court should clarify its decision in Arizona v. Inter Tribal Council of Arizona. While states must “accept and use” the federal voter registration form authorized by the NVRA, that “use” should be considered only the start of the registration process. It should not prevent states from taking whatever other reasonable actions are necessary, including requesting further information or documentation from voters, to verify all of the information provided by an applicant, including claims of citizenship.
Hans von Spakovsky is a Senior Legal Fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom