The Mother of the SAVE Act

A hotel room in Arizona in January makes for an unusual war room, but that’s exactly where a small group of conservative-minded election attorneys gathered in 2024 to discuss upcoming elections and concerns about fraud. As in any group project, multiple personalities come out. And as in any group project hoping to get a good grade, they need someone who will pull various ideas into one concrete assignment. In this particular hotel room, that person was Cleta Mitchell. The result was the most controversial bill to hit the 119^th Congress – one that would drastically change voter registrations and the voting process.

Who actually has originated the SAVE Act?

Cleta Mitchell, who turned 76 this week, is a prominent conservative election law and campaign finance lawyer, a former Democratic lawmaker from Oklahoma, a senior legal fellow at the Conservative Partnership Institute, and the little-known originator of the Safeguard American Voter Eligibility (SAVE) Act.

Congress first passed a law that made noncitizen voting a felony in 1996, though it only applies to federal elections. The federal voter registration form asks applicants to mark a box to indicate whether they are citizens, under penalty of perjury. Some states do require proof of citizenship for registering to vote, but courts have generally understood federal law to preempt them.

That’s the case in Arizona, where Mitchell met with fellow conservatives when she first had the inspiration for a national law.

At issue was a 2004 Arizona statute requiring voters to provide documentary proof of citizenship to vote. But the Supreme Court ruled in 2013 that the requirement applied to state and local contests, not federal elections.

“It’s just truly cockamamie,” Mitchell told RealClearPolitics in an interview. “It’s totally backwards, and that’s when I said we need to get Congress to amend the National Voter Registration Act, and so that’s where it started.”

Where the SAVE Act currently stands

The SAVE Act has passed the House four times but has stalled in the Senate, where Republican leaders say they do not have the votes to overcome a Democratic filibuster – or, as President Trump has urged, get rid of the filibuster. With fewer than 50 days until the midterm elections, Mitchell is now brainstorming alternative ways to make proof of citizenship the national standard. She might be one of the few people determined to fan the flame to keep the issue alive in the next Congress.

Back in 2000, Mitchell watched aghast as the presidential election descended into chaotic legal challenges and open confusion about who won. A one-time Democratic state legislator, the election snafus proved the final push to the conservative side. At the time, she wrote a call to action in a Wall Street Journal op-ed. 

“For Democrats, here’s the golden rule: He who writes the rules wins the gold,” Mitchell recounted at a recent event in Dallas. “That’s why the Democrats and their left-wing allies have focused on election laws and campaign finance laws and ethics laws. They write all the process rules, the rules of engagement for politics, and we have to stop letting them do that.”

Starting early in the Presidential election cycle

In February of 2024, Mitchell went from her Arizona meeting to a boardroom at the Conservative Partnership Institute, a think tank founded by former White House Chief of Staff Mark Meadows and headquartered in Washington. She invited staffers of the two closest constitutional lawyers in Congress: Sen. Mike Lee of Utah and Rep. Chip Roy of Texas.

“I knew that I was going to have a pretty heavy lift to explain to them because they’re both very committed federalists,” Mitchell recalled. “I remember one night in particular, we had this two-hour call with Mike Lee and Chip Roy and some staff, and they just peppered me with questions.”

Mitchell’s argument is that the Supreme Court made documentary proof of citizenship a federal issue when it ruled in 2013 that Arizona could not apply its own election laws to federal ballots. That leaves only Congress or the Election Assistance Commission to make national standards, but the EAC requires three votes out of the four commissioners, evenly divided between Republicans and Democrats. By the end of the call, she had convinced Roy and Lee.  

Keep it simple

“What we were all trying to do is figure out what do we genuinely need to do, assessing objectively what’s wrong with our elections, and at the core of it from our vantage point was trying to keep it as simple as possible,” Roy told RCP. Although they discussed photo identification at the time, they opted to keep the idea for a bill as simple as possible. “I’m not comparing to the Gettysburg Address, but the Gettysburg Address’s greatness is simplicity. And that was really the driving force here. We were trying to keep it very simply focused on the citizenship verification question.”

Next, Mitchell went to work on the next rung on the ladder: House Speaker Mike Johnson. Over several months, Mitchell persistently raised the issue whenever she found herself near the speaker or on a group call with him.

“Every time I could, I would raise my hand and say, ‘Mr. Speaker, I know you’re working really hard raising all this money to elect Republicans, but what are you going to do about all the illegals in the country who are voting?’ And after two or three months of hammering in a polite way, because I do really think the world of him, he said, ‘You know, Cleta, I’ve been thinking about this. I think you’re right, and I’m going to talk to the president about it.’”

A concerted effort for the SAVE Act

“While the SAVE Act is good, commonsense policy, it took a concerted effort from across the political spectrum to prepare this legislation for floor consideration and win the hearts and minds of the American people in the process. Cleta Mitchell worked day and night to help craft and ultimately build support for this legislation,” the Speaker’s office told RCP. “Her unrelenting advocacy is a big reason why supermajorities of American voters now support proof of citizenship when registering to vote, and we are grateful for her efforts.”

At the time, Trump was campaigning for reelection, and Democrats controlled both chambers of Congress. But Mitchell pointed out that the minority can raise awareness and make some noise, especially in an election year. Lee and Roy were already practiced at this strategy.

“I’m someone who believes very much in the force of a tireless minority,” Roy said, quoting a phrase commonly misattributed to Founding Father Sam Adams. “Cleta is one of those forces.”

Mitchell went to work with congressional staffers in Lee’s and Roy’s offices to draft the bill. Those who worked on the effort describe her as the driving force.

The go-to girl

“She has the aura of being the one that people look to for direction and guidance on how to proceed,” said Wade Miller, executive director of the Center for Renewing America. Miller and his organization have supported the SAVE America Act and worked with Mitchell on promoting it publicly. “She’s always good at weeding through the nonsense and highlighting what is legally accurate and how to best attack a position from a legal perspective.”

Now congressional Republicans stare down a future in which they could soon be in the minority again, which downgrades the bill’s chances of passage even lower than they currently are.

Mitchell lamented the days when congressional Democrats sponsored election integrity bills. In 2019, Sen. Ron Wyden championed a bill to mandate federal election audits and hand-marked paper ballots to boost cybersecurity standards. The same year, Sen. Amy Klobuchar of Minnesota and Sen. James Lankford of Oklahoma co-sponsored a bipartisan bill to enhance election audits to prevent foreign interference with voting machines.

These days, however, Democratic Party officeholders almost universally oppose the SAVE Act on the grounds that its voter identification requirements would be overly burdensome for many voters, especially low-income citizens who Democrats say do not always have easy access to identification documents. A 2006 policy brief from the Brennan Center for Justice argued that these laws would disenfranchise many voters, including but not limited to victims of natural disasters whose documents have been destroyed.

A broadly popular concept

Yet the idea of proving identity and citizenship is broadly popular among the American public. A July Fox News poll found that 83% of adults believe photo identification should be required to register to vote. Although noncitizen voting is already a federal crime, Americans are less on board with requiring proof of citizenship. A Politico poll from May found that 52% of respondents support requiring documentary proof. Around 17% had no opinion, but 18% were opposed, and 13% were unsure about the idea.

In July, New Jersey Gov. Mikie Sherrill announced that the state found 6,600 noncitizens erroneously listed on the voting rolls. Of those, around 340 had voted in 2023 and 2024 elections, according to the press release. The state struck 5,100 names from the voter rolls and is reviewing another 1,650. Sherrill credited the error to a system glitch during the previous governor’s administration, and she refused requests from the Justice Department to hand over the state’s voter registration data. The situation has offered something of a smoking gun for Mitchell’s efforts.

“If it’s broken just a little bit, it’s still broken,” Mitchell said. “You either have rules and procedures that make sure that noncitizens are not getting registered to vote, or you don’t. And at the present time, we don’t.”

From practicing law to an effort to remake it

Democrats have also cast a skeptical eye at Mitchell’s involvement, even behind the scenes. In 2021, she was on the now-infamous phone call between President Trump and Georgia Gov. Brian Raffensperger in which Trump demanded that the governor “find” the 11,780 votes required for him to win the state. Mitchell resigned as senior partner from the law firm Foley & Lardner LLP after the call recording surfaced. Afterward, she founded the Election Integrity Network to train election workers and to promote ways to secure elections. Mitchell argues that there is plentiful opportunity for fraud, though audits have not found significant numbers of noncitizen voting. At a briefing on Tuesday, Attorney General Todd Blanche noted that in the past 10 days, the Justice Department has charged 11 individuals for illegally voting.

Once Trump won reelection in 2024, Mitchell knew she’d have less than two years to kick the effort into high gear. She called Speaker Johnson and told him they needed to adjust the House bill, but he told her they’d go ahead and simply pass the same version they voted on in 2024. Knowing Senate approval would be difficult, Mitchell worked with Mike Lee again to insert the SAVE Act into a shell bill to get to a floor vote and bypass committee hearings on it.

An (in)artful dodger

And that is where it has remained for more than a year. Senate Majority Leader John Thune of South Dakota said after public pressure that he would file cloture on it to put members on record about the issue. Mitchell says he’s dodging.

“We must have had 60 or 70 signatures on a letter that we delivered to him, saying, ‘Oh no, you don’t. We’re on to this,’” Mitchell said. “We know that a cloture vote, an immediate cloture vote, is planned failure, and that’s not acceptable. And so then we started. We really went to town on X, frankly, just hammering him.”

Mitchell concedes that she was on a mission to troll every post on Thune’s social media accounts to raise the pressure on the SAVE Act. Other conservative figures like Pennsylvania-based activist Scott Presler did the same. CPI founder Mark Meadows began posting daily updates on which Republican senators had not yet co-sponsored the legislation until nearly everyone was on board. The comments section on any Thune post remains littered with angry demands to pass the SAVE Act.

Senate tradition?

But the public pressure campaign still hasn’t moved the needle. Thune maintains that he’d love to pass the bill, but not at the cost of ending the filibuster, a Senate tradition that requires 60 votes to pass cloture. Mitchell said that the social media wars were the first grassroots victory using X. But unlike GOP leaders in the House, Mitchell says Thune never met with her to figure out how to pass the SAVE Act. (Thune’s office did not reply to a request for comment).

“Essentially what we have is a situation where [former Senate Majority leader] Robert Byrd is still controlling the Senate from the grave,” Mitchell says. “He wrote rules and procedures, and they’re still following those. Well, why don’t they change those? They don’t have to get rid of the filibuster, but they need to make the filibuster work. But the Republican leaders… treat it like it’s the Ten Commandments, graven in stone.”

Then the White House got involved. The president proclaimed he would not sign any legislation until the SAVE Act passed, though he did soon move on to other bills. Trump also discussed the bill at several opportunities with reporters, claiming it included measures it didn’t, such as banning mail-in ballots. Then he proposed adding new amendments to include measures to ban biological males playing in girls’ sports and to ban transgender procedures on minors. Both Mitchell and Lee ran interference.

Thune is to blame

“I talked to him. Mike Lee talked to him. I mean, a number of people talked to him, but he kept saying, ‘Oh, it’ll make the bill stronger if you put these other things in because they’re 90% issues,’” Mitchell recalled. “We would say yes, they are 90% issues, but they need to stand on their own. We need to keep this focused on the elections. I didn’t disagree with any of the things he wanted. It’s just the trying to put them all in one bill, as we would say in the Oklahoma legislature, is more chain than we could swim with.”

But Mitchell blames the ongoing stalemate on Thune, not the president.

“The process brought it down, not Trump,” Mitchell said. “That’s the part that leadership is supposed to manage, and I don’t think they know how to do that. I don’t disagree about doing our best to protect the filibuster, but you have to make it work. You follow these rules, and then at the end of the proceeding, it can proceed to a vote on a simple majority. That’s what they need to do.”

Too close to the Election of 2026

Mitchell concedes it is likely too close for election officials to adequately enforce documentary proof-of-citizenship changes and voter ID laws, even if, by some long shot, the Senate passes the SAVE Act in its final few months in session. The Senate is out for nearly all of October, which is standard for an election year. And if Democrats win a majority in either chamber in November, the SAVE Act is all but guaranteed to never come up for a vote in the next Congress. But “there’s more than one way to skin a cat,” she says.

The Supreme Court left two roads open to amend nationwide voter laws: Congress or the Election Assistance Commission. The EAC was established in 2002 as part of the Help America Vote Act, a bill that sought to fix the election count issues of the 2000 presidential election. The board is composed of four commissioners: two Republicans and two Democrats. The commission distributes federal election funding, tests voting systems, and sets voluntary voting standards and determines best practices. And most importantly, it publishes the federal voter registration form. But the commission does not have the authority to enforce its guidelines.

Looking at the Election Assistance Commission

Earlier this year, Trump fired the two Democratic commissioners and asked the other two to resign. He used recent precedent from the Supreme Court that more clearly defined a president’s ability to fire members of independent agencies. The commission can still operate without leaders, but it cannot set any new guidelines. The president has not yet indicated who he will nominate to fill the board, which requires Senate approval. Federal law requires that no more than two members can come from the same party. There is also a rule that the president cannot compel members of the board to enact particular guidelines that he wants. The only lasting way to reform voting systems is through legislation.

“I’m always tired of waiting on Congress,” Mitchell said. But she admitted that it’s crunch time ahead of a bleak midterms outlook for the GOP. “It would help in November if the Senate were to come up with a way to do even some components of the Save America Act, even if they didn’t apply to the midterms, just to demonstrate we actually know that there’s a problem with our elections, and we’re willing to take steps to do something about it.”

No let-up

Mitchell could also see a third avenue in the upcoming year. The Supreme Court agreed to take up RNC v. Mi Familia Vota in its term beginning in October. This means the justices will revisit Arizona’s documentary proof-of-citizenship law and whether the National Voter Registration Act or a separate consent decree blocks the state from applying it or from canceling non-citizen voter registrations within 90 days of a federal election. More than two years since Mitchell first launched a serious effort to write legislation, she’s showing no signs of letting up.

“She’s been pushing five years, and now it’s the top issue being debated in Congress, and it seems to be at the top of the president’s agenda,” Wade Miller noted. “She’s like a dog with a bone. If it’s right and good and important, she is going to relentlessly pursue that.”

This article was originally published by RealClearPolitics and made available via RealClearWire.