By Marilyn Odendahl
The Indiana Citizen
June 28, 2024
Indiana Secretary of State Diego Morales is among the 50 secretaries of state who received a letter this week advising them the U.S. Department of Homeland Security could be used as a resource to potentially identify noncitizens on the voter registration rolls.
The letter was sent by the America First Legal Foundation, a conservative legal advocacy organization which is led by Stephen Miller, former senior adviser in the Trump administration. According to a press release from AFL, a copy of the letter was also provided to each governor and attorney general.
America First used the letter to point out what it calls “two critical tools” that it says are available to “verify citizenship status of individuals registered to vote” in the United States. Specifically, the letter stated, secretaries of state can submit requests to the Department of Homeland Security for information “about an individual’s citizenship or immigration status for any lawful purpose.”
“This includes an inquiry where you have reason to believe that a given individual who is registered to vote might not be a United States citizen,” the letter asserted.
Morales released a statement Thursday confirming he received the letter, but did not indicate whether his office would use the DHS to check Indiana’s voter rolls. The secretary of state’s statement accused the Biden administration of allowing “an unprecedented number of noncitizens” to enter the country, and noted Morales supports the closure of loopholes which could possibly enable noncitizens to register and vote.
“Strong immigration enforcement and upholding election integrity are priorities for the Hoosier state and our country and very important to me on a personal level,” Morales said in the statement, adding he became a naturalized citizen after he legally immigrated with his family to the United States.
“As Indiana’s Secretary of State and Chief Election Officer,” Morales’ statement said, “my office strives to ensure only eligible Hoosiers vote in our state’s elections.”
However, Ami Gandhi, director of strategic initiatives and the Midwest Voting Rights Program with the Chicago Lawyers’ Committee for Civil Rights, said noncitizens are not voting in U.S. elections. Not only do noncitizens break the law and face significant penalties if they vote, she said, but also individuals registering to vote have to attest under penalty of perjury that they are a U.S. citizen.
“State and federal laws have specific requirements and safeguards in place regarding when it is permissible to have a general process to keep our voter rolls up to date,” Gandhi said. She added that voter rolls should be maintained to only include eligible voters, but the processes to review the rolls must be fair.
“These must be general processes,” Gandhi said. “Cherry-picking people off the rolls is not part of those processes as permitted by law.”
Questions about DHS’ database
The AFL letter said the Department of Homeland Security’s Person Centric Query System database could “quickly and easily” verify citizenship status with only an individual’s name and date of birth. However, the letter continued, any list or database from homeland security would only include people who encountered one of the department’s immigration agencies. In addition, the letter said states could not rely solely on the information from homeland security and would have to do further investigation.
Even so, the letter said, “DHS can answer all inquiries from state and local elections officials about the citizenship status of all presently registered voters and all persons attempting to register to vote and do so at no cost to the states. State and local election officials already have the authority to submit citizenship inquiries about registered voters to DHS, and they can demand immediate responses from DHS.”
Gandhi said the letter’s prompt to use DHS to check a voter’s citizenship status raises several questions. In particular, she asked, what criteria would election officials rely on to identify the voters whose names should be sent to the Department of Homeland Security? Also, she questioned what database DHS would use to check if someone is a U.S. citizen, how the database is kept current, what process is followed if DHS flags someone as a noncitizen, and what cures are available for false positives?
“Those are the things that I would ask to even be able to get at the question of ‘Is this legal?’” Gandhi said. “We would need to know more about how the state would be purporting to interact with DHS here.”
Moreover, Gandhi said, the AFL letter does not present any strategy or proposal for a process that keeps the voter rolls updated in a fair and nondiscriminatory manner. Tools are available, she said, to make voters rolls “even more accurate” and procedures exist to keep the rolls current.
“If there is an interest in delving into the details about that on the part of the state or local officials in Indiana, then voting rights advocates would welcome those opportunities,” Gandhi said. “But the broad strokes of accusations made that are unsupported by data about noncitizen voting don’t imply that kind of seriousness of actually looking at voter modernization tools to make our system as accurate and up-to-date as possible.”
Critic: ‘No good evidence’ problem
Allegations of noncitizens in Indiana being registered to vote by the Bureau of Motor Vehicles pushed House Enrolled Act 1264 through the legislature during the 2024 session.
The new law requires voter registrations be checked against BMV records and federal jury forms to spot potential noncitizens who have registered. Opponents of the legislation said the proof-of-citizenship provisions could violate the National Voting Rights Act, but the bill’s author, Rep. Tim Wesco, R-Osceola, said the provisions were doing noncitizens a favor by ensuring they did not illegally register to vote.
AFL’s letter amplifies fears about noncitizens voting, even telling the secretaries of state that if the Department of Homeland Security does not provide the requested citizenship information, the states can “initiate a legal action.”
“Given the unprecedented level of illegal immigration since January 20, 2021, the need for action could not be greater, and the stakes could not be higher,” the letter stated. “If you act now, there is likely still time to conduct legally sound voter list maintenance and remove ineligible foreign nationals from your state’s voter rolls before the fall elections.”
Gandhi pointed to reports by the Brennan Center for Justice and the Cato Institute. Both cited to their own analyses in disputing the claims that noncitizens are casting ballots.
“There are likely many problems with America’s voting system and there is no doubt that a non-zero number of noncitizens illegally voted,” the Cato Institute concluded in its report, “but there is no good evidence that noncitizens voted illegally in large enough numbers to actually shift the outcome of elections or even change the number of electoral votes.”
Gandhi also noted naturalized citizens who are eligible to vote could be in blocked from the polls by any process meant to remove noncitizens from the registration lists. The process used to review the voter rolls, she said, must be designed so it does not exclude people who can legally vote.
“This is a time to be increasing paths to civic engagement for eligible voters, especially given Indiana’s record of extremely low voter turnout,” Gandhi said. “We look at an attempt like this to reduce the electorate and my reaction is, ‘Don’t we want our community members to have a fair chance to participate, especially during this important and exciting election cycle?’”
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.
