OTTAWA, Kan. — When Kansas began requiring residents to prove their U.S. citizenship before voting more than a decade ago, Steven Wayne Fish tried and failed.

A first-time father in his 30s at the time, he wanted a say in debates over public school funding despite having never voted before. But Fish, who was born on a since-decommissioned Air Force base in Illinois, couldn’t find his birth certificate, leaving him unable to register for the 2014 general election.

A federal court eventually blocked the Kansas law following a lawsuit in which Fish was the namesake plaintiff. For years, the Fish legal case served as a warning to politicians who wanted voters to produce documents proving their citizenship.

That’s changing, as President Donald Trump and Republicans in Congress try to impose a similar proof-of-citizenship voter registration requirement nationwide through a long-shot proposal called the Safeguard American Voter Eligibility Act or SAVE America Act.

Blue states would have a major tool to push back. Whether they would use it is less clear.

States have the power to set separate rules for state and local elections and to apply federal restrictions only on residents voting in federal races, according to interviews with more than a dozen election experts, officials and lawmakers. Operating two distinct election systems, a process called bifurcation, would give states more freedom over who can vote in races for governor, state legislature and other down-ballot contests.

Bifurcation would ensure that individuals like Fish could still cast a ballot in some contests, even if they couldn’t vote for members of Congress or president.

“It’s very strange and surreal,” Fish told Stateline about a potential national requirement during an interview on Tuesday in Ottawa, Kansas, where he works at a warehouse. Those looking back at his state, he said, will see “it did not work at all.”

Under the U.S. Constitution, states regulate the times, places and manner of federal elections, though Congress has the authority to override them. But Congress has far less authority over state and local elections.

Brandon Fincher, managing editor of the Journal of Election Administration Research & Practice, said a national proof-of-citizenship requirement would likely generate interest in bifurcation. “I think it absolutely would,” said Fincher, who wrote a dissertation that found states are likely to adopt dual systems when their voter registration rules are threatened by federal mandates or court orders.

Bifurcation wouldn’t restrain Congress from imposing voting restrictions on federal elections. It also wouldn’t stop any changes Trump has threatened to make through executive order, but those would almost certainly face immediate challenges in federal courts. The president has no unilateral authority under the U.S. Constitution to direct how states run elections.

In the past 30 years, only a handful of states have tried a two-tier system, according to Fincher’s research. Costs and administrative barriers tend to discourage states from pursuing a dual system, election experts and officials said.

Kansas briefly had one more than a decade ago. It came amid legal fights over the state’s 2011 proof-of-citizenship law and allowed voters who signed a sworn statement that they were citizens, but didn’t provide documentation, to cast ballots for federal races but not in state and local elections.

Arizona is the only state that currently operates a two-tier system — requiring proof of U.S. citizenship to vote in state and local races, but not in federal.

Still, the country is littered with current smaller-scale efforts and past examples where states operated multiple election systems.

More than 20 cities allow some form of noncitizen voting in local races, for example, even though only U.S. citizens can vote in federal elections, according to Immigrant Voting Rights, a site that tracks legal noncitizen voting. Before the 1920 ratification of the 19th Amendment, which guaranteed universal suffrage to women, some states allowed women to vote in some contests but not all. And Maryland lawmakers are currently weighing a plan to bifurcate its elections for some absentee ballots.

Wren Orey, director of the Bipartisan Policy Center’s Elections Project, said more proposals to bifurcate state and federal elections could follow any congressional action.

“We’re always going to see that any time there are major federal policy changes being considered that some states are going to consider, at the very least, a system where state and local elections don’t meet those requirements,” Orey said.

Maryland weighs ‘insurance policy’

In Maryland, state lawmakers are weighing bifurcating a small portion of their absentee ballots depending on the outcome of a looming U.S. Supreme Court case involving mail ballots that arrive after Election Day.

Fourteen states and the District of Columbia offer so-called grace periods for ballots that are postmarked on or before Election Day but arrive afterward, according to the National Conference of State Legislatures. The Trump administration argues these ballots cannot be counted. A ruling in that case, expected later this year, will affect millions of Americans.

If the White House wins, twin bills being considered in Maryland’s House and Senate would direct election officials to tabulate all votes on those ballots except for federal offices.

Maryland state Sen. Cheryl Kagan, a Democrat sponsoring one of the bills, called the legislation an “insurance policy.”

The sponsor of the Maryland House bill, Democratic state Del. Kris Fair, said lawmakers would have to wait and see on federal actions before deciding whether the bifurcation could be expanded to cover additional restrictions on voting, but he didn’t rule it out.

Fair said additional bifurcation would be a “complicated conversation.” But he added that Maryland legislators would always seek to reduce as many barriers to voting as possible while keeping elections safe and secure.

“Every time the federal government is acting, seeking to restrict access and seeking to disenfranchise voters, we are going to immediately look at the books and see how we can bring enfranchisement back to the largest number of Maryland voters that we can,” Fair said.

A national battle

Republicans face tremendous pressure from Trump, who has called for “nationalizing” elections, to act ahead of the midterms in November to decide control of Congress.

They say new nationwide election standards are needed to guard against voter fraud, though instances of fraud are very rare. Trump has long pushed the false narrative that the 2020 election was stolen, and his administration has taken steps to keep attention focused on that race, including an FBI seizure of 2020 ballots from Fulton County, Georgia, last month.

The SAVE America Act narrowly passed the U.S. House last week and has majority support in the Senate, but faces a likely filibuster that would take 60 votes to overcome — which it does not have. The measure would require the public to produce a U.S. passport or birth certificate in most cases to register to vote. It would take effect immediately if signed into law.

The Trump administration has cast anyone opposed to the legislation as motivated by a desire to cheat.

“They want illegal people and aliens in this country to be able to vote for them and to rob the United States citizens of their vote,” U.S. Department of Homeland Security Secretary Kristi Noem said at a news conference in Arizona last week.

White House spokesperson Abigail Jackson said in a written statement to Stateline that Trump is “committed to ensuring that Americans have full confidence in the administration of elections, and that includes totally accurate and up-to-date voter rolls free of errors and unlawfully registered non-citizen voters.”

Just a handful of years ago, some Republican legislators considered bifurcation in response to Democratic proposals during the Biden administration that sparked fears of a nationalized election system.

When a Democratic-controlled Congress in 2021 and 2022 tried to pass sweeping election legislation that included automatic voter registration, a conservative backlash led to the introduction of bills in some statehouses that sought to assert greater state authority over elections.

In 2023, the Bipartisan Policy Center found that since 2020, legislation had been offered in five states — Alaska, Missouri, New Hampshire, Oklahoma and Texas — that would have separated state and federal elections. One 2021 Alaska measure would have directed state officials to stop holding elections for president and Congress if new federal law created a significant conflict with Alaska regulations. No state moved forward with separating its elections.

“If the Federal Government nationalizes the election system, undermining the long tradition of mutual cooperation, or worse, the sovereign rights of a state to manage its internal election affairs, then Alaska should simply tell the federal government to run their own election, bifurcating the election process,” Mike Shower, a then-state GOP senator who sponsored the measure, wrote in a statement at the time.

Shower, now a candidate for lieutenant governor, didn’t respond to an interview request sent to his campaign.

Election officials predict complications

Whatever the motivation behind considering bifurcation, election officials and experts say the burden of running a dual system is high.

Michelle Kanter Cohen, policy director and senior counsel at Fair Elections Center, a nonpartisan voting rights organization, called the scenario a “nightmare” for election administrators because they would have to implement state and federal requirements while paying for it all.

Jamie Shew, clerk of Douglas County, Kansas, an area that includes the sprawling University of Kansas campus, said an upcoming primary election there has about 113 ballot styles — variations of ballots that voters receive depending on where they live and what party they belong to. A bifurcated system would only increase that.

“It just adds this layer of administration and complication,” said Shew, a Democrat. “It’s one of those things that as an election administration keeps you awake, because do we have it right?”

Even setting aside bifurcation, enforcing a proof-of-citizenship requirement could be costly for election officials. Bob Page, the nonpartisan registrar of voters in Orange County, California — an area with about 3.2 million residents — estimates the additional cost in his jurisdiction could exceed $6 million a year.

Page told Stateline in an email that assuming each voter could be served in 10 minutes, his office would need 59 additional staff members. He emphasized that he takes no position on legislation and will implement any changes in the law.

In Douglas County, Shew said that as Congress has debated a proof-of-citizenship requirement, he’s heard from election officials around the country who want to know about Kansas’ experience. When the state law was in effect, Shew said, he hired two additional temporary staff members to help process voter registrations.

Despite serving a university community, Shew said many of the issues his office encountered involved older voters who couldn’t locate a birth certificate or had certificates with incorrect information. In one instance, a birth certificate for someone born at a house decades ago listed when a doctor showed up, but not the date of birth. In other cases, birth certificates spelled names incorrectly.

“There’s a lot of stuff we’re going to have to record,” Shew said of the proposed SAVE America Act requirements. “If you get 100 [voter] registrations in a day, I’m going to have to go back to bringing in temporary staff just to handle that amount of extra paperwork.”

Kansas Secretary of State Scott Schwab, a Republican running for governor, didn’t directly answer Stateline’s questions about whether he supports the SAVE America Act or has any concerns about the ability of election officials in the state to implement the measure if it becomes law. Schwab told The Associated Press in 2024 that Kansas’ proof-of-citizenship requirement “didn’t work out so well.”

In a short written statement to Stateline this week, Schwab noted only that Kansas has had a voter ID requirement — which is different from a proof-of-citizenship requirement — for more than a decade and that all states with one benefit.

Kansas Attorney General Kris Kobach, a Republican who championed the state’s proof-of-citizenship law while he was state secretary of state and personally defended it in court, didn’t answer questions from Stateline.

Fish, the Kansas resident who tried unsuccessfully to register to vote in 2014, said he eventually found his birth certificate in the back of a baby book, but not before it was too late for that election. A resident of Garnett, a city of about 3,200 people, Fish said he’s learned not to bring up the legal challenge often.

Many people don’t understand how it could happen to an average person, he said, adding they believe there must be a reason the person trying to register was at fault.

“It’s not really something you can change their minds on if they’re on that side,” Fish said.

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Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.

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