U.S. Supreme Court Clears Path for Data Sharing on Voter Rolls: Citizenship Checks Against Social Security Records to Resume Ahead of Midterms

The U.S. Supreme Court on September 25, 2026, issued a per curiam order granting the Government’s application to stay a district court injunction that had blocked the modified Systematic Alien Verification for Entitlements (“SAVE”) program. Department of Homeland Security v. League of Women Voters, No. 26A308 (Sept. 25, 2026). The stay allows the Department of Homeland Security (“DHS”) to resume using the modified SAVE program, which links Social Security Administration (“SSA”) records to citizenship verification requests from state and local election officials, while litigation over the program continues.

Background: The Modified SAVE Program

Since 1986, SAVE has allowed federal, state, and local agencies to verify the citizenship and immigration status of noncitizens applying for public benefits, relying on records from DHS, the Department of Justice, and the Department of State.

In March 2025, President Trump signed an Executive Order (Exec. Order No. 14248, 90 Fed. Reg. 14006 (2025)) directing DHS to build systems allowing state and local authorities to verify the citizenship status of registered voters and voter registration applicants, and directing SSA to make its records available to DHS for that purpose. Two months later, DHS launched the modified SAVE program, which differed from the original program in two key respects: (1) it incorporated checks against additional SSA records, including full or partial Social Security numbers (“SSNs”); and (2) it allowed state and local authorities to run bulk searches of multiple individuals at once. Under the modified process, a state or local agency uploads an individual’s name, date of birth, or SSN information; SAVE forwards that information to SSA; SSA searches its own databases and returns the individual’s name, date of birth, full SSN, and citizenship status to DHS; and DHS relays a match or no-match response to the requesting agency. If the program cannot confirm citizenship, the agency is required to contact the individual and request proof of citizenship to register or remain registered to vote.

The Litigation

The League of Women Voters, several of its local affiliates, and the Electronic Privacy Information Center sued DHS, SSA, and other federal defendants, alleging that the modifications (1) violated the Social Security Act’s confidentiality provision governing SSNs and related records, (2) violated the Privacy Act of 1974’s substantive and procedural protections, including its notice-and-comment requirements for new “routine uses” of records, and (3) were arbitrary and capricious under the Administrative Procedure Act (“APA”). The U.S. District Court for the District of Columbia agreed with the plaintiffs on all three claims, vacated the modified SAVE program, and denied the Government’s request for a stay pending appeal. A divided panel of the D.C. Circuit likewise denied a stay, with Judge Katsas dissenting.

The U.S. Supreme Court’s Decision

The Government sought a stay from the high court pending its appeal to the D.C. Circuit and any petition for certiorari. To obtain a stay, the Government had to show a reasonable probability of a grant of certiorari, a fair prospect of reversal, and a likelihood of irreparable harm absent a stay, with the equities also weighing in its favor. The Court, in a per curiam opinion, granted the stay.

On standing, the Court found that at least one of the plaintiff organizations’ members, a Louisiana voter who is a naturalized citizen whose SSA records had not been updated to reflect her naturalized status, had demonstrated a cognizable injury because she likely would have been required to submit additional proof of citizenship had the modified program remained in place.

On the merits, the Supreme Court concluded that the Government is likely to succeed based on 8 U.S.C. § 1373, a provision of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) that the Court had never previously interpreted. Sections 1373(a) and (b) provide that, “[n]otwithstanding any other provision of Federal, State, or local law,” no government entity, official, person, or agency may “prohibit, or in any way restrict” the sending or receiving of citizenship or immigration status information to or from DHS. The Court reasoned that these “notwithstanding” clauses necessarily authorize DHS to request and receive that information from SSA regardless of restrictions in other statutes such as the Social Security Act and the Privacy Act, since otherwise agencies would face an “impossible predicament” of complying with one statute while violating another. The Supreme Court found this reading reinforced by § 1373(c), which requires DHS to respond to state and local inquiries seeking to verify an individual’s citizenship or immigration status.

On irreparable harm and the equities, the Court found that the Government would be irreparably harmed absent a stay because § 1373(c) obligates DHS to respond to election officials’ citizenship-verification requests, and the district court’s order prevented DHS from using the program it considers best suited to that task. The Court acknowledged that the National Voter Registration Act (“NVRA”) bars states from conducting systematic list-maintenance programs to remove ineligible voters within 90 days of a federal election, 52 U.S.C. § 20507(c)(2)(A), which limits the practical impact of the stay for the current election cycle. But the Court found that the order still prevented the Government from using the modified program to conduct individualized inquiries, which remain permitted during the moratorium period, and that this inhibited federal assistance to state and local agencies administering the midterm elections. On balance, the Court found the equities favored a stay.

The Court noted, in a footnote, that a related question, whether the NVRA’s 90-day moratorium prohibits states from implementing programs to cancel the registrations of noncitizen voters within that window, is separately pending before the Court in Republican National Committee v. Mi Familia Vota, No. 25-1017, and was not addressed in this decision.

The stay remains in effect pending disposition of the appeal to the D.C. Circuit and, if a petition for certiorari is timely filed, pending disposition of that petition. If certiorari is denied, the stay terminates automatically; if certiorari is granted, the stay terminates once the Court’s judgment issues.

The Dissent

Justice Jackson, joined by Justices Sotomayor and Kagan, dissented. The dissent argued that the majority’s reading of § 1373 is implausible because subsections (a) and (b) merely bar government entities and officials from interfering with citizenship-information exchanges that are otherwise lawful; they do not affirmatively authorize disclosures that another statute, such as the Social Security Act’s confidentiality provision, expressly prohibits. The dissent found this reading confirmed by statutory context, IIRIRA’s enactment history (aimed at state and local noncooperation with federal immigration enforcement, not at overriding privacy statutes), a contemporaneous Office of Legal Counsel opinion reading § 1373(a) narrowly, and the fact that the Government had never before invoked § 1373 to override statutory confidentiality protections in the three decades since IIRIRA’s enactment. The dissent also emphasized that DHS and SSA failed to timely publish a system of records notice or provide a 30-day comment period, as required by the Privacy Act, before implementing the modified program, and argued this Privacy Act violation is untouched by the majority’s reading of § 1373 regardless of the merits of the statutory-authority question.

On the equities, the dissent argued that the majority considered only the harm to the Government and ignored the harms the modified SAVE program has caused and will likely continue to cause lawful voters, including the risk that states might cancel the registrations of recently naturalized citizens or force them to prove citizenship before voting, harms the dissent noted had already materialized for at least three individuals in Texas. The dissent also argued the Government’s claimed harm was overstated because the NVRA’s 90-day moratorium already limits the program’s application to the current election cycle, and that the Government failed to demonstrate a likelihood of success on the merits sufficient to justify the stay.

Hodgson Russ Insights

• The modified SAVE program may resume. DHS may again use the modified SAVE system, including bulk searches against SSA records such as full or partial SSNs, for individualized citizenship verification while the litigation proceeds.
• Systematic list-maintenance remains off-limits until after the election. Because the NVRA bars systematic voter-roll purges within 90 days of the November 3, 2026, general election, states and localities may not use the modified SAVE program (or any other tool) to conduct systematic removals of voters during that window. The stay’s practical effect for the current cycle is therefore limited to individualized inquiries.
• This is an interim, procedural ruling, not a final merits decision. The Court found only a “fair prospect” of reversal on an interpretation of 8 U.S.C. § 1373 that it had never previously addressed. The underlying Social Security Act, Privacy Act, and APA claims remain to be litigated on appeal to the D.C. Circuit, and potentially before the Supreme Court on the merits.
• Privacy Act compliance questions remain. The dissent’s point that DHS and SSA failed to timely publish a system of records notice or provide a comment period is not resolved by the majority’s statutory-authority holding and may continue to be litigated separately.
• Watch for further litigation, including on the NVRA’s 90-day window. The Court flagged that a related question about the NVRA moratorium is pending in Republican National Committee v. Mi Familia Vota, No. 25-1017, which could further clarify what citizenship-verification activity is permissible close to an election.

Particular Impact in New York

• New York election officials should proceed with caution given the interim and procedural nature of this ruling.
• No systematic list purges before the election. Under the NVRA’s 90-day moratorium, New York’s State Board of Elections and county boards of elections may not use the modified SAVE program, or any other systematic list-maintenance process, to remove voters from the rolls before the November 3, 2026, general election.
• Individualized verification requests may resume, but proceed carefully. To the extent New York election officials submit individualized citizenship-verification inquiries through SAVE, they should be aware that the underlying data, particularly SSA records for recently naturalized citizens, has been found by the district court to be error-prone, and that a mismatched result does not necessarily indicate noncitizenship. Officials relying on SAVE results to request proof of citizenship from a registered voter should build in a reasonable opportunity for the voter to respond and correct the record before taking adverse action.
• Monitor the litigation and avoid premature policy changes. Because the stay may be dissolved if certiorari is denied, and because the underlying statutory questions remain unresolved, New York election officials should avoid making permanent operational changes based solely on the availability of the modified SAVE program at this stage.
• Coordinate with counsel on data-sharing and privacy obligations. New York agencies participating in SAVE inquiries should continue to coordinate with legal counsel regarding their own obligations under state and federal privacy law when receiving and acting on SSA-derived citizenship data, independent of the outcome of the federal litigation.
• This decision does not require New York to take any new action. It simply permits DHS to resume operating a federal verification tool that New York and other states may, but are not required, to use.

Hodgson Russ will continue to monitor this litigation and other election-related developments closely as the 2026 midterm elections approach.

If you have any questions about this decision or election matters generally, please contact Christopher Massaroni (518.433.2432), Henry Zomerfeld (716.848.1370), or another member of our Election Law and Campaign Finance Practice.

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