For the last two centuries, American democracy has struggled to reconcile two sometimes conflicting principles: encouraging robust participation from lawful voters with a desire to make sure those voters meet some ill-defined threshold of worthiness to cast a ballot.  This worthiness, or as the Founding generation used to say—virtue—has been qualified over the centuries through a variety of criteria: property ownership, literacy and educational requirements, residency, gender, mental capacity, religion, criminal background, and race, to name a few.

As I show in my forthcoming book, In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era, Congress expanded its authority during Reconstruction to define this virtue and, by extension, who can be a part of the political community of “We the Voters” empowered to cast ballots in state and federal elections.  But much of this authority—from enacting legislation pursuant to the Guarantee Clause of Article IV to expand suffrage at the state level to refusing to seat representatives under Article I, Section 5 who have been elected in races punctuated by racial discrimination in voting—has been under-utilized for well over a century, despite an increasing need for congressional oversight that extends well beyond what the Reconstruction Amendments alone have been able to shoulder.

Importantly, the Guarantee Clause not only imposes an obligation on Congress to ensure that each state in the Union has a republican form of government, but that obligation extends past the point of a state’s initial admission into the Union.  Congress has exercised its authority under the Clause to readmit the former Confederate states; in exercising its authority under Article I, Section 5 to review the elections of its members; and as a basis for passing federal legislation designed to bring states in line with republican ideals (legislation that, importantly, also envisioned some form of ongoing congressional oversight). More recently, members of Congress invoked the Guarantee Clause as constitutional authorization for H.R. 1—legislation proposed in 2021 that would have substantially changed voter registration, redistricting, voter qualifications, and other aspects of federal election administration.

These examples notwithstanding, Congress has generally done a poor job of meeting its obligations to ensure republican government under the Guarantee Clause.  Despite the relatively brief push towards democratic ideals during the first and second Reconstructions (as well as occasional proposals like H.R. 1 to make our system more democratic), the appetite to limit membership in the political community of “We the Voters” has been and remains insatiable.  Given our history, we should look at efforts to circumscribe this population with suspicion, especially when such actions happen at the behest of a Congress that has been constitutionally tasked with protecting republican government.

For example, the Safeguard American Voter Eligibility Act (the SAVE Act) would impose a documentary proof-of-citizenship requirement—satisfied by presenting a U.S. passport or birth certificate but not government-issued IDs like driver’s licenses or REAL IDs—to register to vote in federal elections, a stark change from the current system that requires only that voters attest, under oath, to their citizenship status.  The bill, proposed pursuant to the Elections Clause of Article I, Section 4, passed the House in 2025 but has stalled in the Senate.  Critics argue that this change could perpetuate the political disabilities that have been imposed on historically disenfranchised groups, such as the 69 million women whose married names differ from their maiden names on their birth certificates.  But the impact of the law will be felt more broadly, given that 146 million Americans lack a passport, and if one lives in a rural area, the barriers to obtaining the required documentation can be especially burdensome.  Ultimately, the SAVE Act uses process and procedure as a proxy to disenfranchise many voters who otherwise meet the voter qualification standards of the state and federal constitutions, undermining the concept of majority rule that became key to post-Civil War understandings of what republican government required.

Indeed, the Congress seeking to enact the SAVE Act stands in stark contrast to its predecessor that, during Reconstruction, adopted a constitutional framework that, by design, endorsed a form of republicanism premised on expanding access to the ballot.  While many of the criteria that circumscribed the electorate have faded into our collective memories, the Act is proof that others live on in facially race and gender-neutral requirements that continue to make democracy aspirational rather than actual.  But, more importantly, the SAVE Act is a clear affront to the constitutional structure that emerged during Reconstruction and arguably should continue to govern our political system.  Yes, Congress has broad authority to regulate federal elections under the Elections Clause, but this power coexists alongside its obligation to ensure that each state has a republican form of government. 

The Reconstruction Amendments, when combined with Congress’ preexisting authority under the Elections Clause and the Guarantee Clause of the original Constitution, gave Congress significant power in the aggregate over state-level decisions that ultimately define the voting electorate.  But this power—meant to be exercised expansively and coherently to promote a broad conception of “We the Voters”—was supposed to target restrictive and oppressive state voting laws and does not include the authority to impose federal election rules that violate the principles of republicanism that Congress is constitutionally obligated to protect. A Congress that acts to aggressively disenfranchise voters is fundamentally at odds with the Congress envisioned by the first and second Reconstructions.