By Teresa James

Vote caging. It sounds ominous. What exactly does it mean? Well, the term is a little misleading. No one literally puts a vote -- or a voter -- in a cage when vote caging is practiced. Yet, the vote—or voter—might just as well be in a cage because he or she is kept from using the ballot box on Election Day. “Caging” is a term borrowed from the direct mail marketing industry. It involves sending out a mass mailing and separating the responses into categories that matter to the sender. “Cages” were literally used for the returned mail in the pre-digital era. Almost exclusively used by the Republican Party, vote caging involves sending out a non-forwardable mass mailing to a targeted area chosen for its concentration of minorities and/or Democrats. Any returned mail is collected and compiled into a “caging list.” Operatives use the caging list to challenge voters at the polls. In some cases, they use the lists before the election to challenge voters’ right to remain registered.

In most states vote caging, targeting opposition groups for vote challenges, is not even illegal on the face of it. Project Vote’s recently updated brief on United States’ voter challenge laws reveals that almost every state permits a private individual to challenge a citizen’s right to vote simply upon the grounds of a single returned piece of mail. Only three states, Minnesota, California and Rhode Island expressly prohibit voter challenges that are only based on a piece of returned mail.

So what’s wrong with laws that allow a person to challenge someone’s right to vote after a single mailing has been returned? Three initial problems, (1) it is in conflict with the National Voter Registration Act (NVRA); (2) database matching used by vote caging operations is unreliable and leads to spurious challenges and, (3) well, sleet and snow or sun or rain, the United States Post Office really doesn’t always get the mail through.

First, the NVRA safeguards against removing a voter from the registration rolls due to incorrect information about an address change by creating a multi-step procedure that election officials must follow before a voter’s registration is cancelled on those grounds. After the steps are followed, a voters name may not be removed from the registration rolls until he or she fails to vote in two federal elections or asks to have his or her name removed. State challenge laws are used by political parties to get around the federal NVRA voter list maintenance system.

Second, the address lists used by vote cagers are often filled with errors or are out-of-date. A case in point is the debacle that occurred in King County, Washington in 2005. In that case, the vendor was hired by county Republicans to check registration rolls against a database of mail-box rental addresses. The vendor omitted the CITY from the address match! Thus 123 Main St. in one city was matched up with 123 Main St. in other cities. Other subsets of voters were also rounded up in error under the wide parameters of the caging operation. The error-ridden caging list lead to a mass challenge against 1,943 county voters, most of whom had not moved and many of whom had voted from their addresses for years.

Third, the reliability of the U.S. Mail is something many readers will have had experience with. Overall, there is an inevitable error rate, particularly in densely populated urban areas. Caging operations are run almost exclusively in urban areas. It is this strong possibility of error in mail delivery that prompted the development of the NVRA safeguards in the first place.

There are even more compelling reasons to scrutinize the use of state challenge laws to run partisan vote caging operations. As practiced by state and local Republican parties, often with training from the Republican National Committee, vote caging violates the Voting Rights Act (VRA and the U.S. Constitution. The VRA is violated when a vote caging operation targets minorities or particular ethnic groups. The First Amendment right to vote is violated when vote caging campaigns place a severe burden on the fundamental right of voting, as occurs when Republican press releases predict challenges numbering in the thousands, foreshadowing long lines and implying that many voters will be subject to an intimidating challenge before they will be allowed to vote.

The press releases appear to be more important to the effectiveness of a vote caging campaign than the challenges themselves. In 2004, the largest Republican vote caging campaign to date was conducted in metropolitan areas nationwide. Republican officials held sensational press conferences alleging voter fraud solely on the basis their flawed vote caging lists, creating the pre-election controversy that they sought and spreading their message of intimidation. After the big media build-up, Republicans made relatively few actual voter challenges.

The big media campaigns that accompany partisan caging operations seem more important than the operations themselves. The media blitz serves three partisan ends, (1) it intimidates voters and may suppress opposition and minority turnout; (2) it falsely paints the targeted populations (largely Democrat or third party voters) as corrupt, and may serve to increase to Republican turnout or to swing independent voters to the Republican candidates; (3) it permits Republican-dominated legislatures to push for voter suppression legislation such as voter ID, proof of citizenship and restrictions on non-governmental voter registration groups.

Community civic groups and the Democratic Party have successfully filed lawsuits founded on the VRA and the Constitution to push back against Republican vote caging operations. Critical lawsuits forced the RNC to agree to a consent decree in the federal District Court of New Jersey, in which the RNC agreed not to engage in any so-called “ballot-security” programs without prior approval from the court. The RNC has disavowed any involvement in “ballot security” programs since then. Instead, it alleges that vote caging operations and similar tactics are run independently by state Republican parties or individuals. The RNC's internal 2004 email documents effectively belie the claim that state parties or operatives acted independently.

We are in an election year, one that has been long-awaited by many American voters. All indications are that vote suppression techniques, including vote caging operation, will be at least as actively pursued in 2008 as they were in 2004. Some states, such as Florida and Ohio have changed their laws to make challenging voters even easier. Check your registrations, leave nothing to chance, and be prepared to fight back against the cynical abuse of state laws to keep you from the polls.

Click here to download the updated version of Project Vote Policy Brief 10: "The Role of Challengers in Elections."

Teresa James is election counsel for Project Vote.

Barely noticed in the crush of attention paid to the Crawford v. Marion County Election Board case was coverage of what we think may be an emerging strategy to vilify Election Day Registration by using the same cries of voter fraud that typify arguments for voter ID laws.

This blatantly political connection between one election law that is being considered by the Supreme Court for voter disenfranchisement and another law that provides all eligible citizens the opportunity to exercise their given right as Americans, makes the Crawford case even more important for determining who can and cannot vote in future elections across the United States starting this November. Ultimately, the only similarity between the two laws is that low income, young, minority and elderly voters are affected, whether it means enfranchising or disenfranchising them.

To contrast, let's review the week in op-ed news regarding the nation's most controversial election administration case which was heard in the Supreme Court last week:

Indiana Secretary of State Todd Rokita and Crawford case defendant wrote in this Indianapolis Star op-ed that “the court quickly cut through the politics that brought the case there and asked profound questions on both sides of the issue. From the advocacy presented, it was evident that this common-sense law was designed to prevent vote fraud and thereby improve the overall confidence in our election process.”

Contrary to Rokita, Adam Cohen of the New York Times called it “an abandonment of voters” if the high court favors the Indiana law, pointing out that “restrictions on voting are subject to heightened constitutional scrutiny, and the state cannot justify the enormous burdens the law imposes.” Cohen further emphasized that “there is no evidence that in-person vote fraud has ever occurred in the state, but there is considerable evidence that voters will be disenfranchised. Indiana could have deterred fraud in less harmful ways, including by accepting a wider range of ID’s.”

A reader and former supporter of voter ID laws illustrated the perils of a voter without proper identification in this letter to the Indianapolis Star. The reader's “politically active 83-year-old mother” endured “100 miles of driving, hours on the phone, and several weeks to provide the same security against voter fraud that a simple signature would have offered.” Although the elderly woman now has proper identification to vote, it is safe to assume that such perseverance is a rarity among most others who would face such barriers.

As a prelude to what may happen if the Supreme Court upholds Crawford v. Marion, new voter ID legislation is being introduced in several states monitored by Project Vote's election bill tracking website, ElectionLegislation.org, most recently in Oklahoma.

In an effort contrasting sharply with efforts to restrict access, a Trinity College political science professor wrote this opinion piece, calling for the “resurrection” of Election Day Registration, or "EDR" legislation as a means of protecting the voting rights of “more than 900,000 Connecticut voters." These voters, "may forfeit their right to participate in the nomination of our next president” because of the state's lack of “Election Day registration and its primaries are closed to unaffiliated voters,” the professor, Clyde D. Mckee Jr. wrote in the Hartford Courant.

McKee gave a confusing list of dates by which unregistered, eligible voters must have their applications processed in order to vote in the February 5 primary, an obstacle course that has proven to be a recipe for failure, he said. The solution he offered was to implement EDR so that “voters who become interested in the election late in a campaign are not disenfranchised because, even if they arrive at the polls on Election Day, they can still participate.” Recalling a failed “comprehensive” EDR bill “that addressed issues such as voter fraud,” McKee hopes to find it “resurrected in the session beginning next month.”

Since the early 1970s, eight states have passed EDR laws (ID, IA, ME, MN, NH, ME, MN, MT) and one (NC) has enacted “same day registration” at its early voting sites, according to Demos, a nonpartisan public policy research and advocacy organization. In the 2004 presidential election, voter turnout in EDR states averaged 12 percentage points above non-EDR states.

“EDR can be particularly effective at raising turnout among young adults, newly naturalized citizens, people of color, and those with lower incomes and levels of educational achievement,” according to Demos, highlighting the advantages of EDR for the very same groups affected by voter ID laws.

In keeping with the “election integrity” trend of limiting ballot access, a proposal to eliminate Wisconsin's EDR practice received its first hearing last week. Bill sponsor, Assemblywoman Suzanne Jeskewitz (R-24), said it “creates more work for clerks and allows for voter fraud,” according to this WQOW report Wednesday. Eau Claire County, Wisc. Clerk Janet Loomis told WQOW that “taking away same-day registration could reduce turnout.” In Eau Claire alone, voter turnout expanded by 10,000 in the 2004 presidential election, the report said.

Election Day registration has been a practice in Wisc. since the 1970s and has rarely, if ever, been subject to voter fraud, according to a recent Demos survey of election officials in EDR states. “Just one of 49 respondents suggested a link between EDR and an increased likelihood of vote fraud. (This official, the clerk of a Wisconsin town of fewer than 9,000 people, was also unique in expressing emphatic opposition to EDR),” Demos reported. “A number of respondents took the position that EDR had actually reduced the risk of fraud. Several agreed with the deputy town clerk in New Hampshire who said that her staff could process voter registrations with greater accuracy after Election Day than in the hectic pre-Election Day period, when the labor was more likely to be performed by temp workers or by in-house staff working overtime.”

Quick Links:

Websites

ElectionLegislation.org

Demos

*About EDR

*Survey of Election Officials in EDR States

*Tools for State Advocates

*Other Resources

One Wisconsin Now

Contact

Click here to reach the office of WI A 158 sponsor, Assemblywoman Suzanne Jeskewitz (R-24) or email rep.jeskewitz@legis.state.wi.us.

In Other News:

“Overall voter registration numbers have declined slightly in Florida over the past two years, but Democrats made gains among Hispanics, the only one of three major ethnic groups that has shown an increase, state figures released Monday indicate.” Read this Associated Press story here.

“With Super Tuesday looming large in the closely contested presidential race, potential voters are flooding into City Halls across Massachusetts to register for the key Feb. 5 contest.” Read this Boston Globe story here.

Erin Ferns is a Research and Policy Analyst with Project Vote’s Strategic Writing and Research Department (SWORD).