STATE OF INDIANA
OFFICE OF THE ATTORNEY GENERAL
TODD ROKITA INDIANA GOVERNMENT CENTER SOUTH, FIFTH FLOOR TELEPHONE: 317.232.6201
INDIANA ATTORNEY GENERAL 302 WEST WASHINGTON STREET ⚫ INDIANAPOLIS, IN 46204-2770 FAX: 317.232.7979
www.AttorneyGeneral.IN.gov
September 13, 2021
The Honorable Nancy Pelosi The Honorable Kevin McCarthy
Speaker of the House of Representatives Minority Leader
1236 Longworth House Office Building 2468 Rayburn House Office Building
Washington, DC 20515 Washington, DC 20515
The Honorable Chuck Schumer The Honorable Mitch McConnell
Majority Leader Minority Leader
U.S. Senate U.S. Senate
322 Hart Senate Office Building 317 Russell Senate Office Building
Washington, D.C. 20510 Washington, D.C. 20510
Dear Madam Speaker Pelosi, Minority Leader McCarthy, Majority Leader Schumer, and
Minority Leader McConnell:
As the chief legal officers of our states, we write regarding the John Lewis Voting Rights
Advancement Act (“H.R. 4”) to express our concerns regarding the devastating impact this reckless
piece of legislation would have on our election systems. The bill, as introduced, would allow the
United States Department of Justice to usurp the authority states rightly possess over their own
elections, essentially federalizing the election system. If these provisions are enacted, rest assured
that the undersigned will aggressively defend our citizens’ rights to participate in free and fair
elections without unconstitutional federal intrusion.
The Supreme Court rejected the coverage formula requirements in Shelby County v.
Holder, 570 U.S. 529 (2013). The drafters of H.R. 4 seek to change the Voting Rights Act’s
(“VRA”) coverage formula under Section 4(b) to resurrect and enact new federal preclearance
requirements in jurisdictions targeted for litigation by activist groups. H.R. 4 implements practice-
based preclearance that would require all states and political subdivisions, regardless of whether
they are covered, to preclear certain election reforms such as voter identification (“ID”)
requirements and voter list maintenance laws before they can be enacted. Thus, the legislation
seeks to overturn common sense election integrity reforms approved by the United States Supreme
Court in Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008), enacted in most states, 1 and
of which 80% of Americans support.2
1
36 states as of January 1, 2021 - https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx.
2
“Public Supports Both Early Voting And Requiring Photo ID to Vote”, June, 21, 2021 Monmouth Poll - “31.
In general, do you support or oppose requiring voters to show a photo I.D. in order to vote? Support 80%; Oppose
18%; (VOL) Depends 2%; (VOL) Don’t know 1%.” https://www.monmouth.edu/polling-
institute/reports/monmouthpoll_us_062121.
The Honorable Chuck Schumer
The Honorable Mitch McConnell
The Honorable Nancy Pelosi
The Honorable Kevin McCarthy
September 13, 2021
H.R. 4 further amends Section 2 of the VRA, establishing new requirements for vote denial
claims. This new version of H.R. 4 is an obvious attempt to overrule the Supreme Court’s recent
decision in Brnovich v. DNC, 141 S. Ct. 2321 (2021). H.R. 4’s new requirements under Section 2
would open the flood gates to litigation in states as opponents of secure elections try to overturn
common-sense election laws in court or force state election officials to concede, settle, or abandon
their election integrity efforts. Why? Because such efforts would qualify as violations, which
would be compiled by the Department of Justice and then used against the states in order for the
Department to subvert any and all election laws the states may try to enact in the future. Thus,
H.R. 4 imposes an unnecessary and undue burden on states, particularly on the part of state
legislatures, state election officials, and the chief legal officers of the states. H.R. 4, as it currently
exists, contains serious constitutional defects.
The Constitution reserves to the states the primary role of establishing “[t]he Times, Places,
and Manner of holding Elections for Senators and Representatives.” Const. Art. I, § IV. The
founding fathers purposely and thoughtfully gave Congress a secondary role in election decision-
making. H.R. 4 seeks to flip this Constitutional mandate on its head, turning the Department of
Justice into a federal “election czar,” wielding the power to challenge any new or existing election
law based on the whims of the party in power and its desire to manipulate election laws to increase
its chances to remain in power. H.R. 4 seeks to do just that. These changes would give the Biden
Administration and administrations to follow (Republican and Democrat) the power to exert
considerable control over state and local election laws without any finding of intentional
discrimination. “‘[T]he Framers of the Constitution intended the States to keep for themselves, as
provided in the Tenth Amendment, the power to regulate elections.’” Gregory v. Ashcroft, 501
U.S. 452, 461–62, (1991) (citing Oregon v. Mitchell, 400 U.S. 112, 124–125 (1970)). Not only
does H.R. 4 undermine the integrity of meaningful legislation reform duly passed in state
legislatures around the country designed to address issues specific to each state, but it also subverts
the will of the people to govern their own states through their chosen representation in those state
legislatures. H.R. 4 flies in the face of state sovereignty, and “there is nothing democratic about
the [ ] attempt to bring about a wholesale transfer of the authority to set voting rules from the States
to the federal courts.” Brnovich, 141 S. Ct. at 2343.
When the VRA was enacted in 1965, federal oversight over state election laws was
necessary to combat discrimination in a limited number of jurisdictions. The original intent was to
ensure that the rights of Americans were not infringed upon at the ballot box based on their race.
The law rightfully targeted states and jurisdictions that used tests and other devices that
“[restricted] the opportunity to register and vote”, but it was always intended to be temporary
legislation.3 Thankfully the VRA did exactly what it was intended to accomplish: “voting tests
were abolished, disparities in voter registration and turnout due to race were erased, and African-
Americans attained political office in record numbers.” Shelby at 553. However, instead of
acknowledging these developments when it came time to reauthorize the bill in 2006, Congress
3
“About Section 5 of the Voting Rights Act,” The United States Department of Justice, September 11, 2020,
https://www.justice.gov/crt/about-section-5-voting-rights-act.
2
The Honorable Chuck Schumer
The Honorable Mitch McConnell
The Honorable Nancy Pelosi
The Honorable Kevin McCarthy
September 13, 2021
kept “the focus on decades-old data relevant to decades-old problems, rather than current data
reflecting on current needs.” Id. Ultimately, the Supreme Court in Shelby held that “Congress must
ensure that the legislation it passes to remedy [racial discrimination in voting] speaks to current
conditions.” Id. at 557. Times have changed, and Congress, as a living embodiment of the country,
must legislate in accordance with those changes.
H.R. 4 looks backwards to the conditions of 1965, not the “current conditions” that exist
in 2021. Today, the ability to vote is widely accessible. Despite claims that “key protections” were
“gutted by the Supreme Court” through the Shelby decision, there is no evidence that voter
suppression is on the rise.4 On the contrary, it has been found that “[in] the wake of Shelby …
minority registration and turnout in formerly preclearance counties have been flat or increasing
relative to counties that were not covered” and “the aggregate affect appears to be a small increase
in registration and voting among Black and Hispanic voters.” 5 Today, the main concern among
citizens is no longer voter discrimination, it is in preventing voter fraud, safeguarding the right to
vote, and ensuring that every legal vote is counted undiluted by illegal votes. Public confidence in
our election system is at record lows with more than 30% of the electorate believing that the 2020
election was stolen due to voter fraud.6 H.R. 4, which is more concerned with political rhetoric,
instead has no interest in addressing criminal activity in cases of vote dilution and vote denial. 7 If
courts cannot consider states’ interests in curbing voter fraud, their hands will be forever tied in
favor of the Department of Justice and the desires of the federal government.
In the Committee on House Administration’s Subcommittee on Elections report in support
of H.R. 4, it was concluded that “[the] testimony and data show definitively that the voting and
election administration practices examined can and do have a discriminatory impact on minority
voters and can impede access to the vote.”8 The report, in part, refers to state voter ID laws, which
have repeatedly been a target of this Congress, even though such laws have stood the test of time
and have become best practice for election administration. The Supreme Court upheld Indiana’s
voter ID law, one of the most robust in the nation, in Crawford, supra, and 35 other states have
enacted their own voter ID laws. H.R. 4 brands such laws discriminatory while lacking any actual
evidence to back up such claims. The House of Representatives simply relied on the testimony of
35 partisan witnesses.9 In reality, a study the National Bureau of Economic Research conducted
4
“Rep. Sewell Introduces H.R. 4, the John R. Lewis Voting Rights Advancement Act, to Restore Protections of the
Voting Rights Act of 1965,” U.S. House of Representatives, August 17, 2021, https://sewell.house.gov/media-
center/press-releases/rep-sewell-introduces-hr-4-john-r-lewis-voting-rights-advancement-act.
5
Mayya Komisarchik and Ariel White, “Throwing Away the Umbrella: Minority Voting after the Supreme Court’s
Shelby Decision,” Massachusetts Institute of Technology, July 8, 2021,
https://arwhite.mit.edu/sites/default/files/images/vra_post_shelby_current.pdf.
6
Infra, Monmouth Poll, Question “No. 23 - Do you believe Joe Biden won the 2020 election fair and square, or do
you believe that he only won it due to voter fraud? Fair and square 61%; Due to voter fraud 32%.”
7
H.R.4 at 10.
8
Chair G.K. Butterfield, "Voting In America: Ensuring Free And Fair Access To The Ballot," Subcommittee on
Elections of the Committee on House Administration, July 2021,
https://cha.house.gov/sites/democrats.cha.house.gov/files/2021_Voting%20in%20America_v5_web.pdf.
9
Id.
3
The Honorable Chuck Schumer
The Honorable Mitch McConnell
The Honorable Nancy Pelosi
The Honorable Kevin McCarthy
September 13, 2021
between 2008-2018 found that strict voter ID laws have had “no negative effect on registration or
turnout, overall or for any specific group defined by race, gender, age or party affiliation.” 10
H.R. 4 dramatically lowers the burden of proof for plaintiffs in vote denial claims under
Section 2 of the VRA. Under H.R. 4, vote denial would occur when a person faces greater difficulty
in complying with the requirements and this greater difficulty is, at least in part, caused by or
linked to social and historical conditions that have produced or currently produce such challenged
discrimination against them. This directly attacks the “ordinary burdens of voting” standard that
has long been used by courts to uphold common-sense reforms and essentially stacks the deck in
favor of any plaintiff filing under the VRA. H.R. 4 encourages courts to consider specific factors
in vote denial claims that weigh heavily in favor of plaintiffs and are unpreventable by election
officials, including, among other factors: the existence of discrimination outside of voting
processes—such as in employment, education, and health care—the use of overt or subtle racial
appeals in political campaigns, and the extent to which members of the protected class have been
elected to public office in the jurisdiction. Most shockingly, H.R. 4 pressures judges to consider
the factor of whether a jurisdiction uses photo ID requirements for voting in analyzing vote denial
claims—directly attacking the Supreme Court’s standard in Crawford.
H.R. 4 unabashedly prohibits courts from considering vital factors that have been outlined
by the Supreme Court in vote denial claims, such as the overwhelming degree to which members
of a class are not burdened by an election procedure, how long an election procedure has been
lawfully and historically used, whether identical or similar election procedures are used by other
jurisdictions, the availability of alternative means of voting, and the state’s interest in preventing
fraud. Instead, courts would be required to consider factors that weigh heavily in favor of
prospective plaintiffs in addition to only having to meet a watered-down burden of proof to show
a violation of the law. This severely hinders states’ ability to defend their laws, including those
that have been on the books for years. Attorneys General have an uphill battle defending any
election reforms if H.R. 4 is passed. This will lead to even more litigation, including a dramatic
increase in frivolous lawsuits designed to slow the election process, and which will be litigated
with a heavy federal thumb on the scales of justice.
Moreover, H.R. 4 excessively expands the coverage formula with the potential to subject
numerous states to preclearance requirements. First, it expands traditional preclearance that would
specifically target state election laws enacted within the last 25 years. The threshold coverage is
as few as three violations in jurisdictions where the state administers the elections. H.R. establishes
that VRA violations would occur where a United States court finds a procedure contradicts either
the 14th or 15th Amendments or H.R. 4. But H.R. 4 would also create violations where there is a
denial of a declaratory judgement, including temporary or preliminary injunctions, where there is
an objection of the Attorney General, or when any consent decree, settlement, or agreement in
10
Enrico Cantoni and Vincent Pons, “Strict ID Laws Don’t Stop Voters: Evidence from a U.S. Nationwide Panel,
2008-2018,” National Bureau of Economics Research, February 2019,
https://www.nber.org/system/files/working_papers/w25522/w25522.pdf.
4
The Honorable Chuck Schumer
The Honorable Mitch McConnell
The Honorable Nancy Pelosi
The Honorable Kevin McCarthy
September 13, 2021
favor of plaintiffs is approved by an official or adopted by a court of the United States. State laws
stand in jeopardy over mere preliminary judgments and consent decrees. The new formula
unfortunately looks at wins in court, even temporary or preliminary ones that may later be reversed
by the trial court on the full merits or on appeal, rather than the entire record regarding whether
intentional discrimination exists.
Second, H.R. 4 requires “practice-based” preclearance for certain election laws in all 50
states, not just the states subject to the new coverage formula. If States enact election laws within
any of these areas, such as voter ID requirements, voting locations, redistricting, or maintenance
of voter registration lists, the reform is automatically subject to the preclearance process. States
must seek a declaratory judgement from the United States District Court for the District of
Columbia or submit the law to the Department of Justice before implementation. The VRA was
never intended to require every jurisdiction in the country to submit to this federal control. H.R. 4
permits politically appointed bureaucrats to meddle in state affairs, is unlawful, and violates state
sovereignty.
This legislation is a misguided, clumsy, and heavy-handed effort to circumvent Supreme
Court decisions, state sovereignty, and the will of the people. Unfortunately, the Department of
Justice, seeking to undertake its new role as a federal elections czar, has already signaled, in regard
to states updating their election laws after the 2020 election, that they “will review a jurisdiction’s
changes in voting laws or procedures for compliance with all federal laws regarding elections, as
the facts and circumstances warrant.”11 States that create laws based on what works best for their
jurisdiction to respond to a crisis of confidence in our elections systems, will inevitably be targeted
by the Department of Justice leading to more confusion, litigation, and concerns over the validity
of elections going forward. Because the Department of Justice “[does] not consider a jurisdictions’
re-adoption of prior voting laws or procedures to be presumptively lawful,” it shows that the
federal bureaucrats are actively looking for opportunities to circumvent the will of the people. 12
Giving the Department of Justice unlimited authority over state election laws is not only
unnecessary but also unconstitutional.
Though “[state] legislation may not contravene federal law . . . [the] Federal Government
does not, however, have a general right to review and veto state enactments before they go into
effect.” Shelby at 542. We strongly urge you, our nation’s highest leaders, to model the leadership
this country needs and to prevent any further division between the states and the federal
government. Please be advised that should H.R. 4 become law, we will seek action to protect the
sovereignty of all states and the rights of our citizens.
11
“Guidance Concerning Federal Statutes Affecting Methods of Voting,” U.S. Department of Justice, July 28, 2021,
http://cdn.cnn.com/cnn/2021/images/07/28/voting.methods.guide.pdf.
12
Id.
5
The Honorable Chuck Schumer
The Honorable Mitch McConnell
The Honorable Nancy Pelosi
The Honorable Kevin McCarthy
September 13, 2021
Sincerely,
Todd Rokita Steve Marshall
Indiana Attorney General Alabama Attorney General
Leslie Rutledge Mark Brnovich
Arkansas Attorney General Arizona Attorney General
Ashley Moody Christopher M. Carr
Florida Attorney General Georgia Attorney General
Lawrence Wasden Derek Schmidt
Idaho Attorney General Kansas Attorney General
Daniel Cameron Jeff Landry
Kentucky Attorney General Louisiana Attorney General
Lynn Fitch Eric S. Schmitt
Mississippi Attorney General Missouri Attorney General
Austin Knudsen Douglas J. Peterson
Montana Attorney General Nebraska Attorney General
6
The Honorable Chuck Schumer
The Honorable Mitch McConnell
The Honorable Nancy Pelosi
The Honorable Kevin McCarthy
September 13, 2021
John Formella David Yost
New Hampshire Attorney General Ohio Attorney General
John M. O’Connor Alan Wilson
Oklahoma Attorney General South Carolina Attorney General
Jason Ravnsborg Herbert H. Slatery, III
South Dakota Attorney General Tennessee Attorney General and Reporter
Ken Paxton Sean D. Reyes
Texas Attorney General Utah Attorney General
Patrick Morrisey
West Virginia Attorney General
