13

Author of House Bill 1264, Rep. Timothy Wesco, R-Osceola, said the measure strengthens election security in Indiana. (Photo/courtesy of Indiana House Republicans)

By Marilyn Odendahl

The Indiana Citizen

February 13, 2024

As House Bill 1264, the elections security bill, arrived in the Indiana Senate on Monday, the possibility of litigation continued to follow the controversial measure with one Republican senator questioning whether lawsuits could arise from, what he saw as, county clerks being required to determine a voter’s citizenship status.

The Senate Elections Committee, chaired by Sen. Mike Gaskill, R-Pendleton, heard extensive testimony on HB 1264 but delayed voting on the measure until its meeting Feb. 19. Of the 24 people who testified, 16 spoke in opposition, seven testified in support and one asked the legislators to move the bill to a summer study committee.

Rep. Timothy Wesco, author of HB 1264, told the committee members that the bill strengthens elections security in Indiana. Overall, the Osceola Republican said, the measure will help keep the state’s voter rolls “accurate and up-to-date” by verifying those registered to vote are both U.S. citizens and Indiana residents.

Sen. J.D. Ford, D-Indianapolis, pressed Wesco, asking him if Indiana’s elections are not currently secure.

Wesco replied, “Our elections are secure, but, I think, we always need to be vigilant and ensuring that, too, we’re strengthening them as much as we can and, where we see weaknesses, we need to be strengthening those points.”

HB 1264 contains several provisions related to voter registration. Concerns centered on the bill requiring county clerks to use records from the Indiana Bureau of Motor Vehicles to help verify citizenship status and allowing the Indiana secretary of state to use “commercially available data,” like credit reports, to check voters’ addresses.

Both Julia Vaughn, executive director of Common Cause Indiana, and Ami Gandhi, director of the Midwest Voting Rights Program at the Chicago Lawyers’ Committee for Civil Rights, warned the committee that provisions in the bill could spark litigation for violations of the Constitution and federal laws including the Voting Rights Act of 1965.

Vaughn said her organization’s biggest concern was the reliance on BMV temporary credential records to determine which immigrants are naturalized citizens and – therefore – eligible to vote. The information, she said, will be dated and could prevent some naturalized citizens from being allowed to cast a ballot.

“You are certainly looking at a lawsuit, no doubt,” Vaughn told the committee. “Should this law pass, it will be challenged because you are creating different classes of voters.”

Committee member Sen. Greg Walker, R-Columbus, questioned the legality of the proof of citizenship provision. Under HB 1264, a legal immigrant would have to present actual naturalization documentation. The certificate of naturalization number would not be accepted as proof of citizenship until the county voter registration office verified the number with the U.S. Citizenship and Immigration Services agency.

 “That raises, in my mind, concerns about some of the lawsuit challenges that I could see coming,” Walker said to Dustin Renner, election director for the Indiana secretary of state. “If you had a naturalized citizen who makes application, has proof of residency by utility bills and all the other requirements, and then (they) have that naturalization certificate rejected, seems as though you’re asking the (county) clerks to make a legal decision that is outside of their scope of authority to do so.”

Renner replied that the specter of lawsuits was a “fair concern” but did not offer any potential remedy. He said he would take the matter back to the secretary of state’s office for further discussion.

‘More thoughtful examination’ is needed

House Bill 1264 has ignited debate since it was introduced with many of the arguments presented to the Senate committee echoing what was said during the bill’s hearing before the House Elections and Apportionment Committee. On the House floor, the measure was amended to remove the provisions requiring the use of the Systematic Alien Verification for Entitlements (SAVE) program database to identity any potential noncitizens on Indiana’s voter rolls.

The bill passed the House on a party line vote of 67 to 29. Sens. Gaskill and Eric Koch, R-Bedford, were added as sponsors.

Nicole Brown, Monroe County clerk and president of the Association of the Clerks of Circuit Courts of Indiana, told the lawmakers that despite “spirited and bipartisan discussions,” the members of the association could not reach a consensus on HB 1264. However, she said, all the county clerks in Indiana care about election security and want only lawfully registered U.S. citizens and Indiana residents to vote in the state’s elections.

She advocated the Senate committee taking a different approach to HB 1264.

 “I believe that an educational component, working in tandem with other state agencies offering voter registration services could accomplish the same objectives outlined in House Bill 1264 without putting Indiana’s county clerks in the untenable position of going against federal law or statute interpreting immigration law or statute, and at risk for facing litigation,” Brown said, adding that she was respectfully requesting the bill be shifted to a summer study committee.

“This would allow for a cautious and more thoughtful examination, regarding the level of responsibility and liability that has been placed upon Indiana’s county clerks, given that a very precious few of us have attorney backgrounds,” Brown said.

However, three county clerks appeared before the committee to testify in favor of HB 1264, all saying they had found ineligible voters on their local registration rolls.

In particular, Destry Richey and Bernadette Manuel, county clerks for Cass and Starke counties, respectively, testified that noncitizens had registered and were on the voting rolls in Indiana. Richey cited the growing number of immigrants in her community and, according to her, “most of these immigrants” do not speak English.

She said she supported HB 1264’s new requirement for proving citizenship status. “We need this portion of the bill to pass ASAP,” Richey said. “I can attest to the fact that we have noncitizens registered to vote.”

Opposing the bill, Melissa Borja, co-chair of Hoosier Asian American Power, said HB 1264 would create more barriers for naturalized citizens to vote. Using BMV records, which are outdated, she said, will incorrectly flag eligible voters at a time when there are already “troubling racial disparities” in voter registration. She cited statistics that just 50% of eligible Asian American Hoosiers are registered to vote compared to 68% of white Hoosiers.

“This bill adds onerous and unfair steps to voter registration that will be very harmful to specific populations,” Borja told the committee. “And it will function in the same way that poll taxes and literacy tests function in the Jim Crow South. They will exclude people from voting. They will exacerbate racial disparities.”

(Editor’s note: This article has been updated to clarify the remarks by Julia Vaughn and Ami Gandhi.)

Colleen Steffen, executive editor of The Statehouse File at Franklin College, edited this article. She has worked as a feature writer and editor at newspapers in Indiana, Kentucky and Florida.