By Marilyn Odendahl
The Indiana Citizen
February 27, 2025
The Indiana public access counselor has found the Indiana attorney general and the Indiana secretary of state cited a statute that does not apply and “improperly withheld” the list of nearly 600,000 Hoosier voters whose citizenship the state officials had questioned just weeks before the November 2024 election.
Luke Britt, public access counselor, issued the advisory opinion Tuesday in a dispute that began in October 2024 between the Indiana Citizen Education Foundation (parent of The Indiana Citizen) and the attorney general and secretary of state. At issue is a list of 585,774 voters which Attorney General Todd Rokita and Secretary of State Diego Morales sent to the U.S. Citizenship and Immigration Services on Oct. 11, asking the federal agency to verify that the individuals were U.S. citizens.
Rokita and Morales said the names were drawn from the state’s voter rolls and were individuals who had not provided a driver’s license number or Social Security number when they registered to vote or who were living overseas. The state officials said they were trying to prevent voter fraud and maintain election integrity, but voting rights advocates condemned the list as a “political stunt” that discouraged people from voting.
Britt did not opine on the reasons for creating the list, but rather focused on the question of public access in the case: Indiana Citizen Education Foundation, Inc., v. The Offices of the Indiana Attorney General and Indiana Secretary of State, 24-FC-81. Taking a “plain reading of the law,” he concluded the refusal to disclose the list was improper.
“It is the opinion of this office that the Offices of the Indiana Attorney General and the Indiana Secretary of State improperly withheld a list from inspection and failed to allow inspection within a reasonable time,” Britt wrote.
Upon receiving the public access counselor’s opinion, The Citizen contacted the general counsels for the attorney general’s office and the secretary of state’s office with a request to inspect the voter list. A day later, Jerry Bonnet, general counsel for the secretary of state’s office, replied, “On behalf of the Secretary of State, we’re conferring with the Attorney General on the PAC opinion. I expect we will be able to respond to your outreach within the next week.”
Rokita and Morales both issued press releases on Oct. 17, announcing they had sent a letter with the list to the USCIS six days earlier on Oct. 11. They provided a copy of the letter they wrote to then-USCIS director Ur M. Jaddou, demanding the agency “fulfil its obligations” and verify that the 585,774 individuals on the list were, in fact, U.S. citizens and, therefore, eligible to vote. However, when the media asked to see the list of voters, Rokita and Morales balked.
The Indiana Citizen sought the release of the list before the Nov. 5 election and filed an open records request in mid-October with the attorney general’s office. It then sent a complaint on Oct. 31 to the public access counselor.
A back-and-forth with the attorney general’s office ensued, and, eventually, The Citizen filed an amended complaint with the public access counselor on Jan. 10. In its Jan. 31 response to amended complaint, the OAG cited Indiana Code 3-7-26.4-2 and argued the list is confidential under the state statute because it is an excerpt from the voter rolls.
The statute prohibits the Indiana Election Division from providing “any part of the compilation of the voter registration information.” Some exceptions apply in limited circumstances.
“To be clear, the list of names was created by the (secretary of state) and the list belongs to the SOS,” the attorney general’s response letter stated. “The list was provided to the (office of the Attorney General) in its role as attorney for the SOS. … As discussed above, in this instance the responsive records are subject to Ind. Code § 3-7-26.4-2 which makes them confidential, thus their disclosure is prohibited by law.”
However, Britt echoed The Citizen’s argument that the statute shields the Election Division from requests for portions of the state’s voter registration list. Although the division is part of the secretary of state’s office, it is a separate entity with directors appointed by the governor and its own staff. Moreover, the division was not involved in compiling the list that was sent to the USCIS.
“Therefore, if the election division did not directly participate in the curation of the list in question, the statute used for denial does not apply,” Britt wrote.
In its amended complaint, The Citizen also decried the nearly two months the attorney general and the secretary of state took to deny its open records request.
Britt agreed the delay was problematic. He noted the attorney general and the secretary of state should have anticipated the “significant public interest” in the list and developed a strategy for handling requests for access.
“Instead, the complainant had to wait 55 days before a denial that was, for all intents and purposes, a foregone conclusion,” Britt wrote. “So too was the value of the list diminished by denying access after the election.”
Rokita and Morales divided the list into three categories, depending on the information, they said, was missing from each voter’s registration. Since they announced they had sent the list of voters to the USCIS, Rokita and Morales have not given any updates on the status of their inquiry. The state officials have not said whether the federal agency provided citizenship verification for the voters or whether anyone was subsequently charged with a felony for registering to vote as a non-citizen.
In the initial complaint, Bill Moreau, president of the Indiana Citizen Education Foundation and publisher of The Indiana Citizen, urged the public access counselor to demand all three subsets of the list be made available to the public before the election.
“Those who are not on the lists will breathe a sigh of relief and vote without concern,” Moreau wrote in the initial complaint. “Citizens who are on one of the lists may choose to take steps to prove their citizenship. Non-citizens who are on one of those lists may make the rational choice to remove their names from the voter rolls and not vote.”
However, the public access counselor followed the office’s standard protocol and gave the attorney general and secretary of state three weeks after the date of a complaint – or until Nov. 21 – to respond. When the attorney general’s office did reply, it asserted that the public access counselor’s involvement in the matter was premature, because The Citizen’s Oct. 21 open records request had not been formally denied.
The OAG said Rokita and Morales were “reviewing the legal requirements of releasing the requested information” and were working “to determine if the requested records are available for public access.”
After the attorney general’s office formally denied access to the list on Dec. 11, The Citizen filed its amended complaint with the public access counselor. The nonprofit argued the Indiana General Assembly did not intend for Ind. Code 3-7-26.4-2 to block from public view a list such as the attorney general and secretary of state had created.
“The (attorney general’s) belated and post facto excuse for withholding the names of 585,774 registered voters whose citizenship was questioned is that if the (secretary of state) creates a list that is just one name fewer than the entire compilation, publicizes the creation of that list, and sends it to a federal agency, the (secretary of state) is statutorily barred from releasing it,” Moreau wrote in the amended complaint. “The Indiana General Assembly could not have intended such an absurd result, especially not one that is so clearly antithetical to the strong public policy favoring governmental transparency.”
Britt maintained the public access counselor was limited to a “plain reading of the law” and could not delve into legislative intent in an advisory opinion. Also, he noted, speculating on the motivation for creating the list was beyond the scope of his duties.
Still, Britt reiterated that it was “unlikely that the list could have been shielded from disclosure” and the list was, therefore, subject to the state’s open records laws.
“As such, the Complainant should have been granted access by inspection close to the time of the request,” Britt wrote. “An appointment to inspect the list in-office, while allowing the Complainant to make an abstract thereof, would not have been an unreasonable burden at the time of the request.”
This story has been updated to include the response from the general counsel for the secretary of state office to The Citizen’s Feb. 25 request to inspect the voter list.
Dwight Adams, an 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.
