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March 12, 2008

Whitehouse Tackles ‘Nefarious’ Vote

Caging
By Project Vote

In the beginning was the Vote, and the Vote was with the People and the Vote was
the People. Shortly after that, came the political strategists. From then on, the vote
was only for the people who lived in the right precincts.
Thus spake Sen. Sheldon Whitehouse of Rhode Island, more or less, in his Feb. 27
testimony at a Senate Rules Committee hearing on "Limiting Abusive Robocalls and
Voter Caging Practices,", where he presented his ideas to right the "especially
nefarious" vote suppression tactic known as vote caging, before it can taint the
November election.
Voter caging is the practice of sending direct mail to voters' home, compiling lists,
called "caging lists," of voters whose mail was returned, and then challenging those
voters at the polls. It is a practice used almost exclusively to discourage minorities
from exercising their voting rights. "It is an unfortunate reality that, with so much at
stake in the ballot box, organized efforts to suppress the vote go nearly as far back
as the right to vote itself," Whitehouse said.
In an effort to press back, Whitehouse proposed the Caging Prohibition Act of 2007
(S.2305)Caging Prohibition Act of 2007 (S.2305), which would require that operatives
who challenge a voter's right to cast a ballot must provide specific proof of that
voter's ineligibility.
Bogus challenges of voter eligibility at the polls have been used for at least the last
half-century, as documented by Project Vote's report "Caging Democracy: A 50 Year
History of Partisan Challenges to Minority Voters." The findings of a pattern of
Republican disenfranchisement of minorities have helped inspire reform bills in
progress in Oregon, as well as Whitehouse's bill and a complementary bill filed in the
House by Rep. John Conyers.
The technique involves partisan operatives sending "do not forward" letters to voters
in areas heavily populated by people registered with the competing party. Letters
that are returned undelivered are then offered as evidence that the voter no longer
lives where he or she is registered.
This is even though, as Whitehouse noted, letters can be returned for a variety of
reasons, such as that the recipient is in the military and stationed elsewhere, or is a
student, or simply that there is an error in the name or address.
While vote caging has been around since at least the 1950s, it exploded into
prominence in 2004, especially in swing states like Florida and Ohio. The extent of
the practice was revealed last summer during Congressional hearings on the
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politicization of the Justice Department following the firings of U.S. Attorneys who
wouldn't play ball with the administration.
The threat continues unabated, as both states have recently enacted particularly
pernicious laws that make it much easier for Republican partisans to prevent
minorities, the poor, and the elderly in Democratic strongholds from voting at the
polls.
"It is especially galling that those who engage in vote caging often portray it as an
anti-fraud measure, when it is really just the opposite: a nefarious way to compile
obviously unreliable lists that will be used to challenge legitimate voters,"
Whitehouse said.
The committee's ranking member, Sen. Robert Bennett of Utah, made just such an
argument after Whitehouse's testimony. "The tension between keeping ineligible
people from voting, which is the reason why we have registration lists, and the desire
to see that everybody who has the ability to vote should be able to vote without
harassment, goes all the way back to the beginning of the Republic," Bennett said.
"Regardless of how I may or may not feel about your bill, I would hope you would
help us think about this tension and give us whatever suggestions you might have to
help clean up registration lists that are filled with deadwood."
Whitehouse smoothly allowed the point, arguing that his bill seeks to balance that
tension by requiring specific evidence of ineligibility before an individual voter can be
struck from the rolls during an otherwise general purge.
Bennett countered, "Isn't it true that under HAVA (the Help America Vote Act) if
someone is challenged by virtue of a voter caging list, he or she can still cast a
provisional vote?"
Whitehouse: "Legally [yes], but the experience I think, and the reason for the voter
caging practice has been that if you can intimidate voters at the polls, discourage
them from going through the effort, turn them away or cause them to fear some
consequence, they won't exercise rights they may have. Every voter does not come
to the voting booth with a lawyer and a full appreciation of..."
Bennett interrupted testily. "I don't think you need a lawyer," he said. "You simply
say, 'Gee, I'm eligible to vote.' Then you're told, 'Well, you can cast a ballot, but it will
be provisional.'"
"Yeah, and if that worked every time I suspect the vote caging would never have
developed," Whitehouse quipped, with a slight wink.
Other expert witnesses who spoke before the Senate committee provided extensive
support for Whitehouse's assertions.
Judith Browne-Dianis, a civil rights attorney and co-director of The Advancement
Project, spoke about what happened in Ohio in 2004, when Republican operatives
compiled a caging list of 35,000 new voters in predominantly African American
communities in preparation for challenges.
The Advancement Project issued a legal challenge on behalf of a black woman in
Cleveland and successfully prevented the caging from being implemented during
that election.
Chandler Davidson, Professor Emeritus at Rice University and author of the first in-
depth examination of voter caging, testified that in 2004 an estimated half-million
voters were targeted for vote caging in nine states, with 77,000 having their
eligibility challenged in 2006 alone.
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"Surely in an advanced democratic society such as ours there are fair effective and
efficient methods by which election officials, not party operatives, can ensure that
the voter rolls are accurate," he said.
Project Vote weighed in as well, sending a detailed letter to the committee in support
of Whitehouse's bill.
"The Caging Prohibition Act of 2007 represents an important step in preventing the
unwarranted disenfranchisement of eligible citizens, particularly minorities," wrote
Project Vote board president Maxine Nelson. "Partisan politics, whether red or blue or
any other political hue, have no place in the administration of elections."