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By Marilyn Odendahl

The Indiana Citizen

January 11, 2024

An election security bill introduced into the Indiana House is drawing fire from Democrats and prompting one voting rights advocate to tell the legislators that if they pass the measure, the state will be sued.

House Bill 1264 was given a hearing Wednesday before the House Elections and Apportionment Committee. The bill’s author and chair of the committee, Tim Wesco, R-Osceola, said the legislation contains two major initiatives. The first seeks to “tighten up” the state law passed a couple of years ago that prohibits the private funding of elections, while the second, larger provision expands the ability of state and local election officials to maintain “more accurate voter registration rolls” – especially in regards to proof of residency and citizenship.

Along with raising concerns about the voter registration provisions, some lawmakers, election officials and activists complained about the short amount of time between the filing of the bill and the hearing. HB 1264 was filed Tuesday and many said they had not had enough time to thoroughly review it.

Wesco pointed out the bill was only being heard. More time, he said, would be given for testimony when the bill came back before the committee for a vote.

After the hearing, Wesco said he worked in conjunction with the Indiana Secretary of State’s office in drafting HB 1264 and filed it as soon as he could. Also, he said he had considered waiting to hear the bill until next week but decided to expedite it in this short legislative session.

“I’d rather just have a committee hearing and start fleshing it out now rather than waiting a week and trying to hear it and vote on it the same week,” Wesco said. “My preference is to hear bills, get some feedback and I realize that time was short, but the time is short. I believe it’s better to get it out there, start hearing testimony on it and not take a vote – as we didn’t – and give people time over the next week to continue to consider it and look at how we can make it better.”

Potential for lawsuit over SAVE

Bradley King, co-director of the Indiana Election Commission, and Dustin Renner, election director for the Indiana Secretary of State, outlined the provisions in  HB 1264 and spoke in support. They were the only people who testified in favor of the bill and none of the Republican representatives on the committee asked any questions or made any comment about the measure.

King said the bill was developed, in part, from questions raised by county election officials about maintaining voter registration rolls. “I think it’s fair to say that in the 92 counties, there are certainly election registration officials who are hearing public concerns about these issues and, in some cases, conveyed them to the Election Commission.”

As King spoke, Nicole Browne, Monroe County Clerk and president of the Association of the Clerks of Circuit Courts of Indiana, was seated directly behind him and shook her head, indicating she did not agree with his statements.

Democrats and opponents noted they were still reading through the bill, but they pointed to specific provisions they worried could cause trouble for voters.

Democratic Reps. Pat Boy, of Michigan City, and Tonya Pfaff, of Terre Haute, pressed King and Renner on the bill’s requirement that election officials use the Systematic Alien Verification for Entitlements online electronic program to check the “proof of citizenship” for naturalized citizens who register to vote. According to King and Renner, only Tennessee and Georgia are using the SAVE program to verify citizenship.

Boy read information from the American Immigration Council, which highlighted the limits of the SAVE program, namely undocumented immigrants would not be identified by the program. “I don’t think this is really saving anybody here by putting this in the bill,” she said.

Pfaff asked how much the state would pay to use the SAVE program. Renner replied that he was unsure but he would find out.

Wesco jumped into the discussion to defend the use of SAVE, describing the program as a “fast, secure, reliable online service” that enables federal and state agencies to verify immigration status. He gave the scenario of SAVE identifying noncitizens, who have legal status and are living in Indiana, but mistakenly registered to vote when they got  their driver’s license.

“This does have a service, frankly, because if they were to go in and vote as a noncitizen, that potentially becomes a crime on their part,” Wesco said. “So really, it’s to their favor to remove them from the voter registration rolls if they were inadvertently registered.”

However, Julia Vaughn, executive director of Common Cause Indiana, said using SAVE will only create problems for the state. Other states, she said, have not been successful in utilizing the program to achieve their goal of removing people who are not citizens from their voter rolls.

Not only does Indiana not have a problem with noncitizens voting, Vaughn said the state would be taking a serious risk in employing SAVE to clean voter rolls, because the information in the program is dated. So someone who has become a citizen could still be flagged as ineligible to vote.

“I think you are going to get a lot of bad matches here and you undoubtedly will be sued over this law should it take effect,” Vaughn told the committee.

She added HB 1264 reminded her of Senate Enrolled Act 442 which was passed by the Indiana General Assembly in 2017. It would have allowed election officials to remove Hoosiers, who had changed addresses, from the voter rolls without first providing notice and observing the waiting period, as required by the National Voter Registration Act. The Indiana NAACP and League of Women Voters of Indiana sued and the Southern Indiana District Court granted summary judgment in favor of the plaintiffs, finding the law violated the NVRA. The 7th Circuit Court of Appeals affirmed the ruling in July 2021.

“I think this language is not only out of compliance with the NRVA,” Vaughn said of HB 1264, “I think it also violates the Civil Rights Act.”

More restrictions for first-time voters

Rep. Sue Errington, D-Muncie, asked about the provision that allows election officials to use credit bureau reports to verify voters’ addresses. King said credit bureaus have reliable information since financial institutions and businesses rely on the bureaus to keep track of the individuals who owe them money.

“They have an interest in making sure that the communication from the credit bureau to their clients contains the most accurate information,” King said.

Both Errington and Rep. Cherrish Pryor, D-Indianapolis, quizzed King about the removal of individuals from the voter registration rolls.

King replied that no one is ever removed from the voter registration lists. Their status may change, he said, but their name remains.

“That safety net is there, so that the voter’s registration is there to be reactivated and they can proceed in some situations to cast a regular ballot,” King said. “And if it comes up at 10 minutes until the polls close, they can always go to a provisional ballot that is sorted out later. So again, no one is going to be removed from the rolls based on the information that comes to the credit bureau.”

However, Matthew Kochevar, co-general counsel at the Indiana Election Commission, highlighted language in the bill where a voter’s status would change.  The bill actually makes the requirements for first-time voters more restrictive, he said.

Kochevar explained that under current law, when people submit their applications to register to vote, they must provide proof of residency, which can be a utility bill or government check that has the current address. If the individuals do not have the additional residency documents when they file the application, they are still added to the voter rolls and given repeated notices that they need to provide proof of residency.

Because they are on the rolls, Kochevar said, they will be allowed to cast a ballot but it will be a provisional one. In order for the ballot to be counted, they will have to confirm their address.

Under HB 1264, however, Kochevar said new voters who do not have proof of residency would be placed in pending status, rather than in active status. They would not be added to the voter rolls and not appear on the polling lists. Also, they would not be able to cast an absentee ballot.

“If you’re a pending status, you’re not a registered voter, you are not entitled to absentee vote, which means that the only way that they’ll be able to vote will be on Election Day,” Kochevar said. “And the only way that their ballot will be counted – essentially not be made a provisional ballot – will be if they comply and present the proof of residency.”

Following the hearing, Wesco reiterated the committee’s work on HB 1264 is not finished.

“We will hear it again next week,” Wesco said, adding that several county clerks who couldn’t attend this week due to “such short notice” will be there to testify on the bill.

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.