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By Marilyn Odendahl

The Indiana Citizen

April 19, 2024

Indiana Attorney General Todd Rokita has called the U.S. Department of Justice’s effort to uphold voting rights a threat to state sovereignty, but Common Cause Indiana says Rokita is just stoking election falsehoods for political gain.

Rokita and West Virginia Attorney General Patrick Morrisey, both Republicans, wrote a letter, dated April 10, to U.S. Attorney General Merrick Garland, highlighting their concerns about a speech Garland gave on March 3 in Alabama. The letter was signed by 14 other Republican attorneys general.

In particular, Garland, who was appointed by Democratic President Joe Biden in 2021, talked about the efforts by the U.S. Department of Justice to ensure equal access to the ballot box. However, Rokita and the other attorneys general called the initiatives “a weaponization of the DOJ” and “a serious threat to the principles of federalism and separation of powers.”

Julia Vaughn, executive director of Common Cause Indiana, dismissed the letter from Rokita and Morrisey.

“This is simply an opportunity for some Republican politicians to beat their chest and throw gasoline on this fire about election security,” Vaughn said. “That fire should have been squelched years ago, but it’s not, because of people like Todd Rokita. He really does a disservice. This letter is a waste of time.”

Asked if the attorney general has had any contact with the DOJ since sending the letter and what follow up actions are being taken to prevent federal interference in states’ administration of elections, Rokita’s office did not respond.

In a press release announcing the letter, Rokita accused the Justice Department of targeting states that are trying to protect elections.

“With voter confidence at an all-time low,” Rokita said in the release, “the U.S. Department of Justice should champion voter security measures instead of attacking states that implement them. And the DOJ should respect, as well, the constitutional provisions giving states the role of regulating elections.”

Stirring confusion, distrust in elections

Garland gave his speech at the Tabernacle Baptist Church in Selma, Alabama, to commemorate the 59th anniversary of Bloody Sunday, the brutal attack in 1965 by police against civil rights activists who were protesting the denial of voting rights.

Calling the right to vote the “cornerstone of our democracy,” Garland said Black Americans have long faced obstacles to the ballot box. He credited the Voting Rights Act of 1965 with enabling the Justice Department to block more than 1,200 restrictive voting regulations in jurisdictions that had previously suppressed access to the polls.

However, Garland alluded to the U.S. Supreme Court’s 2013 ruling in Shelby County v. Holder, which has been criticized as undercutting key protections against discrimination in the Voting Rights Act. Garland said in recent years state legislatures have dramatically increased the number of laws making voting more onerous for eligible voters.

“Such measures threaten the foundation of our system of government,” Garland said in his speech.

To combat this threat, Garland said the Justice Department is “fighting back.” The DOJ, he said, has doubled the number of lawyers in the voting section of the Civil Rights Division and is challenging “discriminatory, burdensome and unnecessary restrictions on access to the ballot.”

Also, Garland said, the department has established the new Election Threats Task Force, which will investigate and prosecute those who threaten election workers. He highlighted the case of Andrew Nickels of Carmel, who pleaded guilty in February for threatening to kill a municipal clerk in Michigan, “falsely claiming the workers had ‘frauded out America of a real election.’”

“Our commitment to you is that we will never stop working with you, and for you, to ensure that every eligible voter can cast a vote that counts,” Garland said.

Rokita and the other attorneys general saw Garland’s effort to bolster the ranks of the Justice Department and launch a new task force as intruding on the authority of the states.

“The Framers left our election process in the hands of the people through their elected representatives at the state level, thereby making the regulation of elections a sovereign duty and right for the states,” Rokita wrote in the letter. “Any subversion of these clear mandates would be undermining our Constitution and law and order. And we think your remarks undermine these principles in a few ways.”

Also, Rokita’s letter asserted the Justice Department was “fighting back” against “commonsense election security measures” that states had put in place to counter allegations of election fraud. Also, the letter accused Garland of trying to increase the number of votes for the Democratic party.

“Across the country, the 2020 general election generated mass confusion and distrust in the system. Public confidence in our election system is at (a) record low,” Rokita wrote. “By using the DOJ against the states, you continue to sow the seeds of distrust among the American electorate.”

Vaughn said Rokita’s accusations against the Department of Justice were infuriating to her. Rokita and “his ilk,” she said, were “largely responsible” for sowing mass confusion and distrust in the election system.

“It’s his actions that are causing the damage,” Vaughn said. “There was no reason for him to pick this fight other than political and, unfortunately, it seems that Attorney General Rokita cares about politics far more than he cares about public policy.”

Refuting claims in AG letter

Rokita’s letter maintained that states need to be vigilant and take steps to keep elections secure, because “voter fraud does exist.” To support that argument, the letter cites to a database compiled by the Heritage Foundation, a conservative think tank, that purports to have documented more than 1,500 proven cases of voter fraud.

However, a 2017 analysis by the Brennan Center for Justice at New York University School of Law discredited the Heritage Foundation’s database, finding the instances of voter fraud cited there are “grossly exaggerated and devoid of context.” The Brennan Center noted the database includes voter fraud cases from as far back as 1948 and only a small number actually occurred in recent years.

“This ‘database’ does not come close to being an actual study of election misconduct on which national policy should be based,” Michael Waldman, president of the Brennan Center, said when the center’s analysis was released. “It is a grab-bag of cases, few of them recent, many irrelevant to the panel’s work. Waving around a stack of paper does not make it real evidence.”

In the letter, Rokita champions Indiana’s voter ID law and restrictions on absentee voting.

Indiana was the first state in the country to require voters to present a valid ID, before being allowed to cast a ballot. The U.S. Supreme Court upheld the law in a 2008 ruling – Crawford v. Marion County Election Board – but retired 7th U.S. Circuit Court of Appeals Judge Richard Posner, who wrote the opinion when the appellate panel affirmed the law, later expressed some misgivings about the ruling.

“Maybe we should have been more imaginative….We weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote,” he said in a 2013 interview.

Posner later tried to clarify his remarks, denying that he was recanting his ruling. The point he was trying to make, he said, is that judges should be careful in cases regarding elections.

In his letter to Garland, Rokita also cites to the findings of the 2005 bipartisan commission led by former President Jimmy Carter and former Secretary of State James Baker, which raised concerns about the security of absentee voting. The Carter-Baker Commission was formed to counter declining confidence in election outcomes.

In 2021 Carter issued a statement to counter some of the interpretations being made about the report.

“In the 16 years since the report’s release, vote-by-mail practices have progressed significantly as new technologies have been developed. In light of these advances, I believe that voting by mail can be conducted in a manner that ensures election integrity,” Carter said in his statement. “This is just one of several ways to expand access to the voting process for voters across the state, regardless of political affiliation.”

Rokita’s letter disputes Garland’s claim that the Voting Rights Act has been weakened by state laws that hinder access to voting.

“The Voting Rights Act is not under attack,” Rokita wrote. “Election security measures passed by state governments do not ‘make voting more difficult,’ nor are they dismantling the right to vote. Instead, common sense election laws strengthen our electoral process to ensure free and fair elections are conducted among the states; especially since voter fraud does exist.”

However, Vaughn, of Common Cause Indiana, pointed to laws passed by the Indiana General Assembly, including House Enrolled Act 1334, passed in 2023, and HEA 1264, passed in 2024, which, she said, have made it harder to cast an absentee ballot and register to vote.  Election security is not a problem, she said, and these laws are just preventing eligible Hoosiers from voting.

“From start to finish, we’ve got checks and double checks and triple checks,” Vaughn said of Indiana’s election system. “It’s locked up tight. There’s no reason for anybody to have concerns about security here. No rational concerns.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org

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