Voter Caging Testimony

Spencer Overton, Professor of Law

The George Washington University Law School

Elections Subcommittee of the 

U.S. House of Representatives Committee on House Administration 

The Honorable Zoe Lofgren, Chairwoman

October 23, 2007 

Professor Overton's written testimony consists of the spoken testimony and the annotated bibliography on this site.

Overton Spoken Testimony on Voter Caging

Chairwoman Lofgren and members of the Committee, thank you for inviting me to testify. I am here to talk about problems with “voter caging.”  “Voter caging” happens when a political party or other political entity sends mail to registered voters. The political party then collects the mail that comes back as “undeliverable,” adds those names to a “caging list,” and then challenges voters on the “caging list” as not being validly registered. 

Let me be clear up front. I agree that only legitimate voters should cast ballots at the polls. And I’m not a mind reader—I’m not here to testify that all people who use voter caging to prevent fraud want to suppress legitimate voting. Also, I agree that caging is a perfectly fine process for mass marketers to ensure they don’t spend money mailing junk mail to bad addresses. 

Instead, my claim is that caging alone is a bad tool to challenge or purge voters. 

As Madame Chair mentioned, legitimate voters showed up on voter caging lists in 2004—legitimate voters like college students away at school, members of the military stationed in Iraq, homeless people, and people who live in apartment buildings. Mail may be returned to a political party as “undeliverable” because the registration lists have data entry errors, such as an apartment unit number not being listed. In a spot-check of a caging list in Milwaukee in 2004, approximately 20% of the addresses had data entry problems. Sometimes a voter moves and remains a legitimate voter. Under federal law, a voter who has moved within the same registrar’s jurisdiction and congressional district may return to vote at her former polling place without re-registering. 

When a consumer erroneously ends up on a mass marketer’s caging list, the result is that she no longer receives a piece of the mass marketer’s junk mail. When a citizen erroneously ends up on a voter caging list, the consequences can be more severe. In Florida, for example, a challenged voter doesn’t have a chance to prove she is legitimate—she simply has to vote a provisional ballot, which is less likely to be counted. In other states, a voter may be asked to prove their place of residence by producing a utility bill, but may not be able to provide documentation on the spot. Legitimate voters may get flustered or embarrassed, and sometimes leave. Challenges can also slow down the voting process and create long lines, which may discourage other voters from voting. 

Voter caging is also a problem because of a lack of uniform application.  In Georgia in 2004, for example, three people gathered the names of the 123 voters with Hispanic names in rural Atkinson County, and challenged 95 of them. Many of the Latino voters went down to the board and provided proof of citizenship before the board of elections threw out the challenges as violating the Voting Rights Act. In Florida in 2004, Republicans created a caging list for Duval County. Of those who could be identified, one study showed that 76% were Democrats, and 69% were people of color.  Now, it is possible that Democrats or people of color were overrepresented on the caging lists because they were overrepresented on the lists of newly registered voters. But with private, targeted enforcement, we never know. Political operatives regularly engage in targeted practices like gerrymandering and targeted messaging, and it may be difficult for them to distinguish those practices from targeted voter caging.   

Other detailed examples of the imprecision of voter caging lists and political and racial targeting can be found in the sources cited in my written testimony at OvertonCagingTestimony.pbwiki.com. That’s OvertonCagingTestimony.pbwiki.com.

Congress should have additional hearings on caging and consider legislation to stop voter caging. This is a national problem. Emails and other evidence show national coordination to engage in voter caging in 2004 presidential swing states like Ohio, Florida, Nevada, Pennsylvania, and Wisconsin. 

Federal legislation is also needed to provide clear guidance, because the law is murky on voter caging. Voter caging litigation often arises in the days just before a major presidential election. Partisan emotions are running high, and it is difficult to gather all of the relevant evidence. As a result, federal judges have been split as to whether to stop challengers.

We do need to have a real discussion about both preventing fraud and ensuring access. Voter caging, however, is not the answer to fighting fraud. The right to vote is more important than junk mail. 

Annotated Bibliography of Voter Caging Materials 

A.  Studies and Reports on Vote Caging

 

Chandler Davidson, Republican Ballot Security Programs: Vote Protection or Minority Vote Suppression--or Both?  (2004).  Rice Political Science Professor Chandler Davidson and his colleagues focus on techniques used to prevent voter fraud that have the actual effect of discouraging or preventing minority voters from casting ballots.  The report summarizes the “most indefensible” of these programs from the 1950s to 2002.  The authors also address the questions of how to abolish these vote fraud protection programs. (113 pages)

 

Teresa James, Caging Democracy: A 50-Year History of Partisan Challenges to Minority Voters, (Project Vote, September 2007).   A comprehensive report discussing voter caging, including the recent attention brought to voter caging by the testimony of Monica Goodling on the Bush Administration’s firing of U.S. Attorneys, the origins and history of voter caging, caging operations in the 2004 election, and recommendations to help eliminate illegal voter caging operations. (35 pages) 

 

J. Gerald Hebert, Inside the Vote Cage, The Campaign Legal Center, June 20, 2007.  Reviews the recent attention given to voter caging as a result of the U.S. Attorney scandal and describes how voter caging works. The article also describes in detail the use of voter caging in the 2004 election when the “caging list” of mostly black voters in Florida became public.  (2749 words)

 

J. Gerald Hebert and Brian Dupre, Vote Caging and the Attorney General, The Campaign Legal Center, July 23, 2007.  Argues that only “vigorous prosecution by the United States Department of Justice” can solve the voter caging problem but this does not appear to be a focus of the current Justice Department.  Notes that former Presidential administrations, such as the first Bush administration, actively sought to prevent voter caging.  Lists and describes instances of voter caging from 1981 to the present.  (3553 words)                                       

 

Justin Levitt and Andrew Allison, A Guide to Voter Caging, (Brennan Center for Justice, June 2007).  Reviews the meaning of voter caging and discusses why it is an unreliable technique to update voter registration lists.  The report details nine common flaws with caging lists.  (7 pages)

 

Justin Levitt and Andrew Allison, Reported Instances of Voter Caging, (Brennan Center for Justice, June 2007).  Lists and describes instances of voter caging from 1958 to 2004.  (5 pages)

 

 

 

B.  Press Accounts of Voter Caging

 

Voter Caging (Part 1), NOW PBS Television Show, July 27, 2007.  Examines evidence that suggests some Republicans engaged in targeted caging in key battleground states like Ohio and Florida during the 2004 election, and connects it to Justice Department activities. Interviews David Iglesias, one of the fired U.S. Attorneys.  

 

 

 

 

Voter Caging (Part 2), NOW PBS Television Show, July 27, 2007.

 

 

 

 

 

 

Jo Becker, GOP Challenging Voter Registrations: Civil Rights Groups Accuse Republicans of Trying to Disenfranchise Minorities, Washington Post, Oct. 29, 2004, at A05.  Discusses Republican attempts to challenge voter registrations, and responses by labor unions and civil rights groups to prevent Republican attempts to purge voter rolls.  The article notes that Republicans claim their challenges are necessary because unprecedented voter registration drives by Democratic-leaning groups have caused substantial numbers of fraudulent registrations.  One of the main methods used by the Republican Party, according to the article, was sending non-forwardable mail to registered voters.  This was done in predominately black neighborhoods in New Jersey, where 45,000 letters were returned as undeliverable, and in Louisiana, where 31,000 letters were returned as undeliverable.  

 

Greg Borowski, GOP Fails to Get 5,619 Names Removed from Voting Lists, Milwaukee J. Sentinel, Oct. 29, 2004. GOP Fails to get 5,619 names removed.doc  Discusses the Milwaukee Election Commissions’ dismissal of a Republican Party challenge to remove registered voters from the rolls if the voters’ addresses did not match those in a U.S. Postal Service database.  GOP leaders said that they still planned to challenge each of these voters on Election Day. 

 

Greg Borowski, GOP Demands IDs of 37,000 in City, Milwaukee J. Sentinel, Oct. 30, 2004.GOP Demands IDs of 37,000.doc  Discusses the Republican Party’s claim that there were 37,000 people at “bad addresses” in Milwaukee registered to vote in the 2004 Presidential election.  Democrats challenged this claim saying that many of these addresses were valid.  The article discusses the difficulty of reviewing this number of voter registration challenges in the weeks directly before an election. 

 

Editorial, Protect Voter Rights Today, Milwaukee J. Sentinel, Nov. 1, 2004, at A14.Protect Voter Rights Today.doc  Discusses a compromise reached in Milwaukee, Wisconsin whereby city officials let 5,512 people vote even though Republican Party officials claimed that these people registered using non-existent addresses.  Poll workers would check for proof of residency of any of these 5,512 people and, for those who have no proof, a special “challenge ballot” would be issued. 

 

Greg Gordon, Ohio, Florida Laws Could Dampen Democratic Voting, McClatchy, Sept., 26, 2007.  Discusses new laws enacted in Ohio and Florida that could be used to facilitate illegal voter caging.  The article notes that this is part of a movement among Republican state-legislatures to pass more restrictive voting laws, such as the photo identification laws in Indiana, Georgia, Missouri, Pennsylvania, and Wisconsin.  The new Ohio law requires that the state’s county elections boards send non-forwardable pre-election notices to all registered voters.  The Florida law deprives registered voters of the right to contest challenges at the polls.

 

Tom Infield, Both Parties Complain of Vote Fraud, Philadelphia Inquirer, Oct. 25, 2004, at B1. Both Parties Complain of Vote Fraud.doc  Discusses Republican concerns, stemming from returned mail from registered voters, that fraudulent voter registration practices would be the deciding factor in determining which presidential candidate carried the state of Pennsylvania in 2004.  Democrats, by contrast, complained that Republicans were engaged in efforts to confuse, intimidate, and otherwise discourage voting.

 

Paul Kiel, Cage Match: Did Griffin Try to Disenfranchise African-American Voters in 2004?, Talking Points Memo, June 26, 2007.  Analyzes the voter caging lists produced and distributed by the RNC's Tim Griffin and found that most of the names were of African-Americans.  According to Kiel, this data strengthens the claim that the Republican National Committee was working to target African-American voters.  The article notes that other reasons could explain the large number of minorities represented on the list, such as a disproportionate number of new registrants being African-American. 

 

Erin Neff, Challenge to 17,000 Voters Blocked, Las Vegas Review-Journal, Oct. 12, 2004, at 3B. Challenge to 17,000 Voters Blocked.doc  Discusses the Clark County, Nevada Registar of Voters’ decision to block a late challenge of 17,000 Democratic voters in Nevada. 

 

Suzette Parmley et al., Voting Access, Challenges Debated with Hours to Go, Philadelphia Inquirer, Nov. 2, 2004. Voting Access, Challenges Debated with Hours to Go.doc  Discusses the clash between Democrats and Republicans in the hours before polls opened in Philadelphia concerning which people were eligible to vote in the 2004 election.  Republican officials threatened to challenge thousands of voters based on returned mail.  The article explores the intense political maneuvering that occurred directly before the election to restore or remove voters from the rolls. 

 

Tim Reynolds, Parties Trade Pre-Election Accusations in Florida, Pittsburgh Post-Gazette, Oct. 29, 2004, at A12.  Discusses pre-election tensions caused in Florida by claims of voter intimidation, promises that absentee ballots will reach citizens who did not have them, and concerns that Republicans would question the authenticity of thousands of votes on Election Day.  The Republican Party compiled lists of registered voters who they planned to challenge on Election Day and Democrats promised not to make Election Day challenges. 

 

John Riley, Complications, Challenges Abound, N.Y. Newsday, Oct. 31, 2004, at A37.Complications Challenges Abound.doc   Discusses the unprecedented 35,000 Republican “pre-challenges” in Ohio in 2004.  The article notes the Democrats’ view that these challenges are meant to intimidate voters.   

 

Sides Debate Voter Registrations, Las Vegas Review-Journal, Oct. 10, 2004, at 2B.Sides Debate Registrations.doc  Discusses Democrats’ opposition to a plan in Nevada to strike more than 17,000 Democrats from the voter rolls as a result of pre-election mailings to register voters’ homes.  The article notes that Nevada law allows people to vote at their old precincts even if they have moved.

 

Sandy Theis, Fraud-Busters Busted, Cleveland Plain Dealer, Oct. 31, 2004, at H1.Fraud Busters Busted.doc  Mentions the problems that caused the Ohio Republican Party’s voter registration pre-election mailings to be returned. The article discusses mailings to soldiers, individuals who refused to accept the mail, computer glitches, and other problems. 

 

Robert Vitale, GOP Misfiled Some Voter Challenges, Board Says, Columbus Dispatch, Oct. 24, 2004, at 1A.  GOP Misfiled Some Voter Challenges.doc  This article discusses numerous Republican voter challenges that were thrown out in Franklin County, Ohio because they were misfiled.  The article notes that some of the challenges, based on letters sent to voters at their homes, were done to members of the military and that this is the first time challenges were made prior to an election.

 

Kate Zernike & Wiliam Yardley, Charges of Dirty Tricks, Fraud, and Voter Suppression Already Flying in Several States, N.Y. Times, Nov. 1, 2004, at B1.  Charges of Dirty Tricks Fraud and Voter Suppression.doc  Discusses "voter suppression" techniques, including letters congratulating newly registered voters to check on the validity of addresses, in key states, such as Ohio, Pennsylvania, Michigan, and Florida, in the days leading up to the 2004 Presidential election.  

 

 

Morgan Macdonald, Professor Overton's Research Assistant, helped assemble this annotated bibliography.