X-Posted at Project Vote's blog, <a href="http://www.projectvote.org/blog">Voting Matters</a>

By Rebecca Wakefield


<P>At the third hearing on voter suppression in as many weeks, members of Congress again sparred over the prevalence of fraudulent voting. This time, it was members of the Senate Committee on Rules and Administration at hearing on <a href="http://rules.senate.gov/hearings/2008/031208hrg.htm">In Person Voter Fraud: Myth and Trigger for Disenfranchisement?</a>, called at the insistence of Senator Chuck Schumer. </P>

<P>The starkly partisan contrast between those who believe voter fraud is the worst affliction on the country’s electoral system and those who believe the greater threat is voter disenfranchisement could not have been clearer. The Democrats on the committee called several witnesses to debunk the myth, while Republicans brought in friendly testimony from true believers. </P>

<P>The Department of Justice, arguably the arbiter of the actual extent of any fraud, stayed out of the fray altogether by refusing to send a witness to testify. </P>

<P>Committee chairwoman Sen. Diane Feinstein of California opened the hearing with a pertinent question aimed at the heart of the seemingly endless debate. Are people showing up at the polls to impersonate registered voters? This persistent idea is part of the rational for laws requiring photo IDs at the polls. </P><P>“I think getting to the bottom of this is important because, in essence, this is the only type of fraud that would be prevented by a photo-ID requirement,” she said, adding that the IDs don’t address other types of voter fraud, such as absentee ballot fraud, vote buying, fraudulent registration or ballot tampering. </P><P>Indiana’s enactment of a photo-ID law is being challenged in the Supreme Court, but similar laws are poised for passage in several states, which could retard voter turnout in November’s election. By some estimates, as many as 21 million adult citizens, generally minorities, the poor, disabled, and the elderly, do not routinely use photo IDs in their daily lives. </P><P>Feinstein’s comments were heartily endorsed and added to by Senators Chuck Schumer of New York and Patrick Leahy of Vermont, among others. Meanwhile Senators Robert Bennett of Utah and Saxby Chambliss of Georgia backed a myth-making contingent behind Sen. Chris Bond of Missouri. Bond argued that “voter fraud is alive and well in America”. He pointed to what he said was the St. Louis voter registration card for an English spaniel by the name of Ritzy. </P><P>“One person a photo ID requirement most certainly would catch is this person here,” he quipped. He did not claim, however, that anyone tried to use Ritzy’s voter registration to actually vote.</P><P>Bond’s assertions were undercut by the testimony of Missouri Secretary of State Robin Carnahan, who stated that “we have found no documented instances of in-person voter fraud in Missouri” despite the best efforts of Bond, Ritzy, and others to perpetuate the notion that the problem is widespread. “Like the myth of Bigfoot, the more folks hear about it, the more they might think it is true,” she said. “Unfortunately, this can hinder voter confidence and discourage participation.” </P><P>Carnahan said that the Missouri legislature’s 2006 passage of a photo ID requirement for voting was struck down by that state’s Supreme Court because the law was more restrictive that the federal requirements of the Help America Vote Act and could have disenfranchised an estimated 240,000 Missouri voters without government-issued photo identification. </P><P>Senator Chambliss countered with witness Robert Simms, Georgia’s Deputy Secretary of State, who said in-person voter fraud was a big problem in Georgia until the passage of a photo ID requirement. He cited an eight-year old newspaper article that found some 5000 votes cast in the names of dead people in the state in the previous 20 years. </P><P>Justin Levitt, counsel for the Brennan Center for Justice, also brought up the 2008 Georgia primary, but argued that since “296 voters arriving without acceptable photo identification reportedly cast ballots that were not counted,” the unacceptable effects of the ID law are hardly a myth. He further cited extensive research that indicates that while incidents of voter impersonation at the polls do exist, they are “strikingly rare” and overall less worrisome than other types of fraud and much more common disenfranchisement. </P><P>Feinstein noted that she had invited William Welch, chief of DOJ’s Public Integrity Section, to help quantify the problem of voter fraud at the polls, but the department “refused to allow him to testify,” begging off with a weak promise to send some lesser bureaucrat to squirm under the hot lights at a later time. </P><P>Feinstein had also wanted to hear from Welch in the context of DOJ’s Bush administration initiative to aggressively pursue investigation and prosecution of voter fraud. “It is my understanding that DOJ failed to complete any Federal prosecutions for impersonation voter fraud,” she said. </P><P>But the DOJ’s dodge was made less effective when David Iglesias, former U.S. Attorney for the District of New Mexico, testified. Iglesias was one of eight U.S. Attorneys fired in late 2006 for failing to use their offices as partisan tools of the Bush administration.</P><P>Iglesias was one of the more aggressive U.S. Attorneys on the issue of vote fraud, convening an election fraud task force in 2004 and reviewing more than 100 complaints, none of which yielded enough evidence to prosecute. Only one case turned up some evidence worthy of follow up, but ultimately, Iglesias judged that the case was not provable. Thus two years of diligent hunting for voter fraud cases in New Mexico produced zero prosecutions.</P><P>“I looked for voter fraud,” Iglesias said. “I wanted to prosecute voter fraud. But the evidence was not there.” </P>

In the beginning was the Vote, and the Vote was with the People and the Vote <em>was</em> 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 <a href="http://rules.senate.gov/hearings/2008/022708hrg.htm">“Limiting Abusive Robocalls and Voter Caging Practices,”</a>, 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)<a href="http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s2305:">Caging Prohibition Act of 2007 (S.2305)</a>, 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 <a href="http://projectvote.org/fileadmin/ProjectVote/Publications/Caging_Democracy_Report.pdf">“Caging Democracy: A 50 Year History of Partisan Challenges to Minority Voters.”</a> 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 <a href="http://query.nytimes.com/gst/fullpage.html?res=9D01E6D91F3AF930A15753C1A9629C8B63">Ohio</a>. The extent of the practice was revealed last summer during Congressional hearings on the 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 <a href="http://www.mcclatchydc.com/227/story/19982.html">pernicious laws</a> 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 <a href="http://www.advancementproject.org/">The Advancement Project</a>, 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.

“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 href="http://projectvote.org/fileadmin/ProjectVote/Congress/Letter_re_US_2305.pdf">a detailed letter</a> 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.”