It is an axiomatic principle of international law that a State may not invoke its domestic laws as justification for failure to respect international law, otherwise international law would be rendered meaningless. The United States Safeguard American Voter Eligibility Act, or “SAVE Act” has been widely condemned by American justice organizations, including the Brennan Center for Justice and the League of Women Voters, as an instrument of voter suppression. With midterm elections having begun, which could secure Republicans a more effective majority in the House of Representatives, perhaps it’s time to stop relying on Constitutional law and start relying on international law. Democracy hangs in the balance.
The United States of America is party to the International Covenant on Civil and Political Rights (ICCPR), having ratified and acceded to the Covenant in 1992.
Article 25 of the International Covenant on Civil and Political Rights guarantees the right to vote to all citizens, without unreasonable restrictions.
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors
On the point of Article 25 guaranteeing those rights and opportunities “without any of the distinctions mentioned in article 2”, Article 2 states the following:
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
It follows that a State may not impose unreasonable restrictions on the right to vote with distinction according to “sex” or “other status”, which applies to marital status. This is further supported by Article 3 of the ICCPR.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
According to the United Nations Human Rights Committee’s General Comment No. 28 on Article 3, the equality of rights between men and women, adopted on 29 March 2000:
29. The right to participate in the conduct of public affairs is not fully implemented everywhere on an equal basis. States parties must ensure that the law guarantees to women the rights contained in article 25 on equal terms with men and take effective and positive measures to promote and ensure women’s participation in the conduct of public affairs and in public office, including appropriate affirmative action. Effective measures taken by States parties to ensure that all persons entitled to vote are able to exercise that right should not be discriminatory on the grounds of sex. The Committee requires States parties to provide statistical information on the percentage of women in publicly elected office, including the legislature, as well as in high-ranking civil service positions and the judiciary.
(CCPR/C/21/Rev.1/Add.10)
The Human Rights Committee distributed General Comment No. 25 in 1996; under Article 40, paragraph 4 of the ICCPR (CCPR/C/21/Rev.1/Add.7). It states that:
1. Article 25 of the Covenant recognizes and protects the rights of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.
3. In contrast with other rights and freedoms recognized by the Covenant (which are ensured to all individuals within the territory and subject to the jurisdiction of the State) article 25 protects the rights of “every citizen”. State reports should outline the legal provisions which define citizenship in the context of the rights protected by article 25. No distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (…)
4. Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. (…)
5. The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws.
(CCPR_C_21_Rev.1_Add.7-EN.pdf)
Finally, according to the Vienna Convention on the Law of Treaties, which has been ratified by the United States and reflects customary international law, Article 27, internal law and observance of treaties, states:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
Before the U.S. Senate votes on the SAVE Act, they ought to be reminded of the larger context of international legal obligations that the United States not only consented to, but played an important role in establishing.
(Originally published April 16, 2025)
Respectful engagement is welcomed through the comment section that follows the footnotes.
“H.R.8281 – 118th Congress (2023-2024): SAVE Act.” Congress.gov, Library of Congress, 23 July 2024, https://www.congress.gov/bill/118th-congress/house-bill/8281. : The SAVE Act in the context of international law
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