Federal election changes loom ahead of midterms

Key Takeaways

Counties play a pivotal role in election administration in the United States, funding and managing over 100,000 polling places staffed by over 770,000 certified poll workers each election cycle. This November, counties in 36 states will have the primary responsibility for administering federal elections in their states. But with the rapidly evolving federal legislative landscape, counties can get caught in the middle of policy changes with little guidance.   

SAVE America Act is pending in Congress  

The SAVE America Act, which would implement major changes to election administration, is currently stalled in Congress, but has a few avenues for passage.  

On July 22, the House advanced the bill by incorporating it into the National Defense Authorization Act but would need to overcome the filibuster to pass the Senate. The House also passed a separate budget reconciliation framework that includes up to $10 billion in spending over 10 years for SAVE America Act-style elections provisions, requiring statewide compliance with those provisions to receive federal election grant funding. This bill would only need a simple majority to pass the Senate. However, the Senate has less than three weeks in Washington to pass this reconciliation framework before the midterms, meaning they would need to move quickly. Any provisions in the reconciliation bill would need to pass the Byrd Rule in the Senate, which stipulates that all measures in the bill must be budgetary in nature. If any of the SAVE America Act-style provisions focus more heavily on changing election policy than the budget, they could be stripped out of the bill. 

The SAVE America Act is much more than a bill requiring photo ID at the polls – it mandates that documentary proof of citizenship must be presented by citizens registering to vote. For most Americans, this typically means a passport or certified birth certificate presented in person.  

The SAVE America Act would immediately require counties and their voters to comply with other provisions, including in-person registration appointments for mail-in voters, presentation of photo ID at the polls, increase liability through new criminal penalties for election officials that make good-faith registration mistakes and submission of all eligible voters to the U.S. Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) system. The act provides no funding for counties to implement these changes with moderate estimates showing that implementing the SAVE America Act would exceed current  federal  funding  made  available  by  the  Help America Vote Act ($45 million for FY 2026) 11.3 times — an increase in election costs of approximately $510  million per election cycle. 

These provisions would create extreme administrative burdens for counties to quickly create the infrastructure to review and validate voter identification documents and process in-person registration appointments.  

Counties should evaluate how their state-level election laws diverge with provisions in the SAVE America Act and make plans to rectify those differences, including building processes to validate documentary proof of citizenship at registration, training staff and organizing infrastructure to process registration requests and planning voter education campaigns on the new eligibility and registration requirements.  Counties should continue to closely monitor the status of the SAVE America Act and contact their federal delegates on its impact with resources available on NACo’s online SAVE America Act County Resource Hub.   

USPS rule is blocked by the Supreme Court  

On Sept. 14, the U.S. Supreme Court denied the administration’s application to be added to the emergency docket to lift a preliminary injunction on a U.S. Postal Service (USPS) rule implementing new restrictions on mail-in voting. After an initial legal back-and-forth over the standing of states and voters’ rights organizations to challenge the rule, two federal judges again blocked its implementation with injunctions, stating that the rule unduly burdens state election procedures ahead of the midterms. The Supreme Court ultimately denied considering the federal government’s appeal of these injunctions and indicated that if the issue was fully litigated, the argument for implementing USPS rule was unlikely to win on its merits.  

The USPS rule follows direction from Executive Order 14399, which directs USPS to tighten restrictions on mail-in voting. The rule would have forced counties to prepare for major changes to mail-in voting, including new envelope design rules and a new verification step for outgoing ballots. All envelopes containing official outbound and return federal mail would have to include the official election mail logo, be automation compatible and include the voter’s unique Intelligent Mail barcode and new Federal Ballot Mail Service Type Identifier. The rule also directs each state’s chief elections official to oversee the input of all mail-in voter data to a new Federal Ballot Mail Portal and requires all mail-in voters to be entered before their ballot can be sent.  

Even though the court denied the administration’s emergency application lifting the injunction on the rule ahead of the midterm elections, the executive branch could still try to implement it for future federal elections. County leaders can tell their elections administrators to proceed with their mail-in voting procedures, but should closely watch future developments.  

Checking voter rolls against DHS citizenship list  

The Department of Homeland Security will create of a list of confirmed citizens for each state’s chief election official to verify citizenship of voters. This directive, also from EO 14399, will use data from federal citizenship naturalization records, Social Security Administration records, Systematic Alien Verification for Entitlements system data and other federal databases to create a list of U.S. citizens in each state. The EO threatens to withhold federal election grant funds from noncompliant states and prosecute individuals who help distribute ballots to noncitizens.   

This part of the executive order is not under a court-ordered hold. Counties should stay in close contact with their state election official’s office to ensure they receive the DHS citizenship list when it is sent to the state. The deadline for the list to be sent has passed, so the process of checking voter rolls against the list will be expedited further. Counties should prepare procedures and infrastructure to complete these checks under the new timeline.   

Prepare staff for congressional election observers  

County election administrators can again expect to see congressional election observers at the polls this November. Under the Election Observer Program, Congress will send trained staff to polling places to monitor ballot casting and counting, including in counties.   

Congressional election observers may observe a wide range of administrative processes but are required to be non-partisan and non-political in their action as an observer. While county election officials can remove congressional observers for violation of the stated rules, Congress may send new observers in their place.   

Counties, especially in districts with close congressional races, should prepare their poll workers for the presence of congressional election observers and work with county attorneys to outline what observers can and cannot do ahead of the general election and offer staff training on how to handle congressional observers.