Testimony before the House Committee on Elections and Apportionment
House of Representatives
Indiana General Assembly
January 17, 2024
Manager, Supreme Court and Appellate Advocacy Program
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
Chairman Wesco, Vice Chair Payne, Ranking Member Pfaff, and distinguished Members of the Committee:
Thank you for the opportunity to appear before you today. My name is Zack Smith, and I currently serve as a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Safe and secure elections should be a priority for all Americans. Unfortunately, too many mischaracterize efforts to secure elections as either unneeded or as attempts to engage in voter suppression. Neither is true. In fact, The Heritage Foundation maintains a database, that while not comprehensive, catalogues over 1,500 instances of proven voter fraud. Indiana alone has forty-seven entries in the database. On top of that, examinations of elections that have taken place in states such as Georgia and Florida—after they passed commonsense election reform measures—show either that voter turnout did not go down or that minority community members were not adversely impacted by these measures, as some had claimed they would be. That’s good news because the goal should be to make it easy to vote and hard to cheat. And the measures being considered today would move Indiana even closer to achieving that goal. Before I briefly discuss several of the specific measures being considered today, some background and context might be helpful.
Commonsense Election Integrity Measures
The Constitution gives state legislatures the primary responsibility for setting the rules and procedures surrounding elections and election administration—even for federal elections. To that end, state legislators should broadly focus their efforts on fourteen areas that are essential to maintaining safe-and-secure elections:
- Voter identification;
- Maintaining the accuracy of the state’s voter registration list;
- Rules governing absentee ballots;
- Rules governing vote trafficking;
- Access of election observers to ensure transparency;
- Citizenship verification;
- Voter assistance procedures;
- Vote-counting practices;
- Election litigation procedures;
- Rules governing voter registration;
- Restrictions on automatic registration;
- Rules surrounding the private funding of elections;
- Post-election audits; and
- Prohibiting ranked-choice voting.
To assist legislators, The Heritage Foundation has provided best practices in each of these areas and scored (on a 100-point scale) and ranked each state to give legislators and the public “a better idea of where their state laws and procedures meet best-practices standards and where they need improvement.”
Indiana has much to be proud of. It currently scores 76/100 and ranks 10th on Heritage’s Election Integrity Scorecard. But there is still room for improvement, particularly in areas that impact the accuracy of voter registration lists and verification of citizenship. HB 1264, the bill the committee is currently considering, would be a significant step towards remedying the current shortcomings in Indiana’s election laws.
Accuracy of Voter Registration Lists
Maintaining accurate voter rolls is one of the most essential tasks necessary for safe and secure elections. With an increasingly mobile public and an influx of illegal aliens, it is essential that states use available tools and resources to maintain the accuracy of their voter registration rolls. This is especially important in Indiana. As we noted in our Election Integrity Scorecard, when “the U.S. Supreme Court upheld Indiana’s new voter ID requirement in 2008, it noted that as of 2004, ‘Indiana’s voter rolls were inflated by as much as 41.4%,’ with registration that were no longer valid because the voters were registered more than once, had moved, had died, or had become ineligible for some other reason. Yet they remained on the rolls.”
To help maintain the accuracy of its election rolls, Indiana currently utilizes several necessary and helpful measures: Indiana election officials run data comparisons between the statewide voter registration list and the DMV. They also run data comparisons between the statewide voter registration list and state corrections department to make sure felons whose ability to vote has been taken away aren’t on the rolls. They run data comparisons between the statewide voter registration list and state vital records. They run data comparisons between the statewide voter registration list and Social Security Administration death record. Election officials also verify the residence address on all new voter registration forms by comparing it to county tax records or other residential address databases to ensure that the address is not actually a commercial or industrial address, or a vacant or undeveloped lot in a residential area.
But state officials are not using all available resources to maintain the accuracy of their voter rolls. For example, state officials are not currently empowered to use commercially available data, such as from credit card agencies, to help verify voter registration information. House Bill 1264 would correct this omission by allowing such data to be used for voter registration verification purposes. The committee deserves great credit for considering legislation to correct this omission. Still, the committee may wish to further strengthen Indiana’s election laws by requiring the use of this data instead of merely making it permissive. The current provision under consideration in HB 1264 is permissive. It provides that the “secretary of state may contract with a company to receive commercially available data, such as data from a credit card company.” The committee should consider changing it from being permissive (may) to being mandatory (shall), or at least require the secretary of state to publicly provide an explanation or report if he does not make use of such commercially available data. This is especially important considering existing Indiana law also is permissive in that it allows, but does not explicitly require, county voter registration offices to conduct a voter lists maintenance program. And even if they do conduct such a program, Indiana law allows, but again does not require, the county voter registration office to use information gleaned from the commercially available databases and other sources of information. Again, the committee should consider requiring such voter list maintenance program and requiring the use of information from the provided sources.
The committee should also consider several additional measures as well. These include actions such as:
- requiring state election officials to run data comparisons between the statewide voter registration list and state welfare and public assistance agencies to find information relevant to registration, such as address changes, deaths, citizenship status, and other factors affecting eligibility;
- requiring that when comparing registration lists to county tax records, checking to see how many individuals are registered at that address in order to find any anomalies such as a large number of individuals registered at a single-family home;
- requiring election officials to investigate the registrations of individuals registered at the same address with only slight discrepancies in their names; and
- requiring, rather than simply allowing, county election officials to use the U.S. Postal Service’s National Change of Address (NCOA) system to find voters who have moved from their registered addresses. Current practices in Indiana vary among offices.
At a minimum, to ensure that the members of this committee, and all members of Indiana’s General Assembly, are fully informed about the current list maintenance procedures used, the committee should require state election officials to provide an annual report to the General Assembly outlining those procedures, especially if, and where, practices vary among local voter registration offices.
A necessary part of maintaining accurate voter rolls is ensuring that only U.S. citizens are part of those rolls. Indiana requires, as does every other state in the union, individuals to be U.S. Citizens in order to vote in elections within the state. This makes sense as federal law also explicitly makes it a crime for non-citizens to vote in a federal election. In fact, as my colleague Hans von Spakovsky has explained elsewhere, “it’s a felony for an alien to falsely claim to be a citizen in order to register to vote or to actually vote (52 U.S.C. § 20511(2); 18 U.S.C. § 1015(f)). It’s also a felony for an alien to falsely assert that he or she is a citizen (18 U.S.C. § 911).” He went on to explain that it’s “also a federal misdemeanor violation for an alien to vote, regardless of whether he or she falsely claimed to be a citizen (18 U.S.C. § 611).” And yet, most states simply rely on individuals registering to vote to be truthful in affirming their citizenship without taking any measures to confirm their affirmation. As Heritage’s Election Fraud Database shows, that isn’t working out very well. But HB 1264 will, again, help move Indiana’s election laws in the correct direction by making use of available databases and information gleaned from those called for federal jury service.
Most promisingly, HB 1264 would require state election officials to “compare the statewide voter registration system with the systematic alien verification for entitlements (SAVE) program data base,” and if a registered voter is found not to be a citizen of the United States based on this information, to remove the voter from the rolls after the individual has been afforded a notice and opportunity to provide proof of citizenship. Using the SAVE database is a commonsense, cost-effective tool for making sure that individuals registered to vote are, in fact, citizens. Many states’ agencies currently use the database when determining whether an individual is eligible for certain government programs. The Department of Homeland Security has described it as “a fast, secure, and reliable online service that allows federal, state, and local benefit-granting agencies to verify a benefit applicant’s immigration status or naturalized/derived citizenship.” Election officials should make use of this database too, and the legislature is right to seek to require its election officials to do so.
Jury rolls also provide another useful data point for election officials in making sure that registered voters are, in fact, citizens. Individuals who serve on juries in either state or federal courts must be citizens. And they must confirm under oath that they are a citizen. If an individual indicates that he or she is not a citizen, that individual is excused from jury service. As we explained in our Election Integrity Scorecard:
In 2005, the U.S. Government Accountability Office issues a report, Elections: Additional Data Could Help State and Local Elections Officials Maintain Accurate Voter Registration Lists. The report analyzed data from federal courts in seven states and found that hundreds of individuals had been excused from jury duty in four federal district courts because they were not U.S. citizens. None of this information was relayed back to the state election officials who had provided the names of potential jurors. Similarly, most state court clerks do not forward information back to election officials about individuals called for jury service in state courts who are excused because they are not citizens.
HB 1264 would move Indiana in the right direction by requiring state election officials to request from Indiana’s two federal courts the list of “individuals who have been disqualified from jury service due to citizenship status.” To make sure that the federal court provide this information, the committee should also add a provision conditioning requests from federal courts for the state’s voter registration or DMV lists to use for federal jury selection on an agreement by the federal courts to notify state election officials if an individual on that list is found to be disqualified because of a felony conviction or non-citizenship. Indiana law does not currently require this. The committee should also consider adding a provision to state law explicitly requiring state courts to notify election officials, and for state election officials to seek information about, when someone has been disqualified from serving on a state jury because that individual is not a citizen. Currently no such provision exists in Indiana law.
All-in-all, HB 1264’s provisions, if adopted, would help make Indiana’s elections more secure by ensuring that only those eligible to vote are registered to vote and actually vote. The committee deserves credit for putting forward these proposals and will hopefully give them due consideration along with the several others I have outlined above.
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