Indiana wants to weed out non-citizens from voter rolls. It hasn’t gone well in other states.

Earlier this month an Indiana Senate committee heard debate on the merits and pitfalls of “cleaning up” the state’s voter rolls, particularly by cracking down on any non-citizens who might be registered to vote.

Two days later, the same conversation played out in a legislative committee in a different state: Iowa.

These aren’t new ideas, but part of a trend of “election integrity” legislation that conservative activist groups are championing in statehouses across the country. The proposal to use Bureau of Motor Vehicle records to weed out potential non-citizen voters, in particular, has landed some other states in court.

Watchdog groups expect the same for Indiana should House Bill 1264 become law. The Indiana General Assembly could give final approval to the bill as early as Thursday.

Election clerks in Indiana are split on their opinions of House Bill 1264 ― it’s such a dead heat that the Association of the Clerks of Circuit Courts of Indiana reached a stalemate and says it is “neutral” as a result. The bill has even divided the Indiana Election Division, whose Republican co-director is in favor and Democratic co-director is opposed.

Some county clerks testified they’ve personally dealt with instances ― one or two in a given county ― of non-citizens registering and voting. Voter watchdog groups who view these provisions as disenfranchising certain groups of voters say lawsuits are all but certain to come if House Bill 1264 becomes law. Seventeen of them signed a letter of opposition to Senate leaders and the chair of the Senate elections committee, though the bill ultimately passed out of that committee 5-3.

Lawsuits aside, they also worry about the bill’s impact on access to the ballot box. Receiving a letter from the state instructing you to prove your citizenship is intimidating, argues Jonathan Diaz, director of voting advocacy and partnerships at the nonpartisan Campaign Legal Center.

“The chilling effect on voters,” he said, “I don’t think can be overstated.”

Where the ideas come from

Voter list maintenance legislation, particularly with respect to citizenship status, has been popping up around the country since at least 2016, but with more fervor after the 2020 election during which dozens of claims of fraudulent voting were investigated and dismissed.

Former President Donald Trump has continuously touted unfounded conspiracy theories about the election in which he lost to President Joe Biden, even as he faces felony charges over his alleged efforts to overturn the election results.

The most contested portions of House Bill 1264 would give the secretary of state the ability to contract with a third party to compare the voter rolls to commercially available data, such as from a credit agency, to check for variations in voter addresses. Plus it would require voting officials to compare the voter rolls with the BMV’s list of people who have temporary driver’s licenses, and notify counties of any matches. The idea there is to find noncitizens who registered to vote. That person would then have 30 days to provide proof of citizenship.

At least a dozen states have enacted voter list maintenance bills since 2022. Lawmakers in at least a half dozen other states are looking at similar legislation this year.

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The ideas are promoted by groups like the Heritage Foundation, which has a website of “model legislation” including many of the tenants of House Bill 1264; and the Honest Elections Project, an organization that emerged during the 2020 election to combat alleged voter fraud.

The goal, these groups say, is not to restrict access to the polls but to make sure only legal citizens are voting.

“It’s really a common sense proposal,” said Catherine Gunsalus, director of state advocacy for Heritage Action, the advocacy arm of the Heritage Foundation.

“Easier to vote, harder to cheat” is the catch phrase both Heritage and Honest Election Project, and others in this space, use.

Watchdog groups say these proposals seek to address a problem that does not exist: alleged widespread voter fraud.

“It’s legislators wanting to say they are cracking down on illegal voting, even though illegal voting is not really happening,” Diaz, of the Campaign Legal Center, said.

Though some Indiana county clerks testified they’ve found a handful of non-citizens on voter rolls, and the bill’s author cites “reports across the state” without evidence, it’s not clear whether any of these instances have been investigated.

IndyStar asked the secretary of state’s office whether it was aware of such instances or any investigations. A spokesperson deferred to the clerks for county-specific information and said Secretary of State Diego Morales encourages them to report any illegal voting to law enforcement agencies.

“Secretary Morales believes that non-citizen registration or voting is a serious concern that should be guarded against,” spokesperson Lindsey Eaton wrote.

Bill author Rep. Timothy Wesco, R-Osceola, told IndyStar the ideas for this bill came from conversations with the secretary of state’s office, and that it’s partly a continuation of a conversation that began last year when lawmakers passed a law allowing Ukrainian immigrants on humanitarian parole to receive drivers’ licenses. Lawmakers are in the process of repealing that provision in response to an injunction from a federal judge, after a group of Haitian immigrants sued.

When someone goes to get a driver’s license, the BMV asks whether they want to register to vote. The bill’s proponents say, whether accidental or not, people who shouldn’t say yes might say yes.

Regardless of the number of reported instances of illegal voting, Wesco said he believes adding extra safeguards will help bolster trust in elections.

“Whether insignificant or not, it creates a lot of concern from the public when they come to understand, Oh, you mean someone who’s not even a citizen can register to vote and vote?” he said. “And there’s no safeguards in place to prevent that? That’s a problem.”

Legal battles in other states

Texas experimented with a similar citizenship data review process in 2019, and it ended badly.

The Texas secretary of state’s office flagged 95,000 registered voters as potential noncitizens, based on a data from the Texas Department of Public Safety on people who said they were not citizens when they got a driver’s license or ID card. Counties started sending those voters letters demanding proof of citizenship within 30 days.

But that data didn’t account for people who might have gained citizenship since getting their ID card. Tens of thousands of people shouldn’t have been on that list. Three federal lawsuits were filed, and three months in, the Texas secretary of state agreed to end the experiment as part of a settlement.

Wesco said he believes the process of reaching out to the voter to confirm their citizenship status, rather than automatically removing people from the rolls, should assuage legal concerns. There is also an appeals process outlined in his bill.

But voting advocates see Texas as a cautionary tale.

“This bill is primed to make the same mistake,” said Liz Avore, senior policy advisor at Voting Rights Lab.

Similarly in Georgia in 2018, a federal judge ordered the state to change its procedure flagging potential non-citizens, after more than 50,000 Georgia residents were flagged because the driver’s license database wasn’t updated when those applicants became citizens.

The constitutional argument against Indiana’s bill, as well as similar proposals in those other states, is that the state would be creating different classes of voters by creating extra burdens for new citizens. There are also logistical hurdles: Immigration attorneys have testified that 30 days is not nearly enough time for new citizens to obtain their credentials.

A law being challenged in Arizona goes a step further than Indiana’s proposal. Arizona’s House Bill 2492 requires all voters to submit proof of citizenship to register to vote, beyond the attestation all voters are required to check off.

Even though it goes further than Indiana’s proposal, Diaz said he still wouldn’t be surprised if groups filed similar lawsuits in response to House Bill 1264. The Campaign Legal Center is one of the plaintiffs in the Arizona lawsuit.

The basis for the Arizona lawsuit is that the bill creates an extra burden of proof for certain prospective voters.

“Whether Indiana rejects you at the moment or rejects you later, doesn’t really matter,” he said.

Political influence on elections

Less controversial but nonetheless emerging from the same movement among conservative activists is a proposal to further restrict private dollars flowing into county elections offices.

After the 2020 election, dozens of states, including Indiana, passed laws outlawing elections offices from accepting private dollars to help them conduct elections ― a response to philanthropies backed by Mark Zuckerburg and Priscilla Chan providing $300 million in grants to help elections offices with administrative expenses like ballot sorters, hand sanitizer and staff.

Conservative groups have charged that so-called “Zuck Bucks” were merely a mechanism to influence elections. The Federal Elections Commission voted unanimously to dismiss a complaint alleging this.

Zuckerburg and Chan found a work around in 2023 by routing their donations through a membership organization that doles out grants, often referred to as “Zuck Bucks 2.0.”

So House Bill 1264 bans Indiana elections offices from becoming members of such an organization. The Honest Elections Project, which focuses on this issue, is aware of similar legislation in five other states.

Even if “Zuck Bucks” weren’t found to tangibly impact the 2020 election, it’s still a bad look to accept private dollars, vice president Chad Ennis said.

“If an election office is underfunded, it should come from the political branch ― from your local or state government,” he said.

Most would agree that elections offices should be funded with nonpartisan, public dollars. The problem, say some groups, is these bills don’t provide such additional funding.

“It’s a little disingenuous to be putting up blocks to funding and then not fully funding offices,” Avore, of the Voting Rights Lab, said.

The Heritage Foundation shared Honest Elections Project’s model legislation on this subject with Wesco, but did not specifically work with him on it, a spokesperson said.

Two Americas?

The broad trend line is conservative states are making voter access laws more strict, while liberal-led states are seeking to expand access to the ballot.

Already Indiana is one of the more challenging states to cast a ballot in, with early poll closing times and a lack of no-excuse mail-in absentee ballots.

“I think it’s really concerning that your zip code determines your level of access to our democracy,” Avore said. “In this election, a voter’s experience is largely going to be determined by where they live.”

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The movement to restrict access has never been louder or more aggressive, Diaz said, and typically motivated by partisan actors.

At the same time, Americans are more plugged in these days.

“I am very hopeful because it’s clear to me that when you put the facts in front of people, democracy wins every time,” Diaz said.

Contact IndyStar state government and politics reporter Kayla Dwyer at kdwyer@indystar.com or follow her on X, formerly Twitter, @kayla_dwyer17.