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Posted June 20, 2007 by J. Gerald Hebert

Inside the Vote Cage: Griffin, Goodling and McNulty (No, Not Another Lawfirm)

“Sometimes vote suppression is as important in this business as vote-getting.”
- Carl Golden, Republican Campaign Spokesperson [1] 

Ever since former Department of Justice White House liaison Monica Goodling let it slip in Congressional testimony that her supervisors knew more about “vote caging” than they let on,[2] a lot of people (though not nearly enough) have been asking, “What’s vote caging?”

Vote caging is an illegal voter suppression technique used to keep minorities (mostly blacks) from voting. It’s a relatively-unknown cousin in the nefarious family of vote suppression techniques.  The practice has been adopted and perverted from a practice utilized by direct-mailers to clean up their mailing lists by sending out mail to specific individuals and seeing what comes back.  The real problems start when political operatives start cherry picking areas likely to vote against their candidates.  And it’s inextricably connected to concerns about the politicization of the Justice Department being raised on Capitol Hill.

I once worked in the Voting Section of the Department of Justice’s Civil Rights Division.  My career with DOJ spanned over 20 years with 15 of those years in the Voting Section.  During the first Bush Administration, the Department filed suit in 1990 to stop a type of vote caging effort by those associated with Senator Jesse Helms' re-election campaign.  At the time, Helms was locked in a battle with former Charlotte mayor Harvey Gantt, an African American.  Helms played the race card in his campaign ads (remember the crumpled job application, another job lost by a white applicant due to affirmative action) and also targeted the African American community to suppress their votes.  His re-election campaign sent inaccurate voting information exclusively to African-American voters that was designed to intimidate them. At least 44,000 postcards were sent, and the returned postcards were used to compile a list of black voters with the intent of challenging them at the polls.   When the helms for senate Committee learned that DOJ was investigating, they immediately stopped what they were doing.  Eventually, DOJ filed suit over the mailing, and the defendants, caught red-handed, signed a consent judgment agreeing to an injunction that put an end to their actions.  Unfortunately, as hearings into the U.S. Attorney scandal have dramatically demonstrated, DOJ’s law enforcement priorities have changed.   Where DOJ’s priorities once were on the protection of minority voting rights, in the 2003-2005 period in particular, they became more focused on advancing one party’s political goals. 

This Administration appointed to the post of U.S. Attorney in Arkansas an RNC operative suspected of developing a caging scheme in Florida in 2004 targeting minority voters – many of them serving overseas in the Armed Forces. And when the Ohio Republican Party was challenged in court to stop a vote caging scheme days prior to the 2004 election, the DOJ weighed in – against the voters who were trying to stop it.

How Vote Caging Works

“Caging” is a direct mail technique used to clean up a mailing list. A political organization sends first class mail to a list of voters (or donors) marked “do not forward.” Sometimes, the mail is sent return receipt requested. Voters whose mail comes back undeliverable, or who do not return the receipt, are removed from the list – caged, in direct mail parlance.

“Vote caging” is when a political organization, typically a political party, compiles a “caging list” of voters whose mail came back undeliverable or who did not return the receipt, and uses that list to challenge those voters as not being validly registered. The challenges can occur prior to Election Day or at the polls.

The problem with using a caging list to challenge voters is simple.  First, the list is most often produced using criteria aimed at a particular racial group (picking out African-American precincts, for example).  Second, there are plenty of reasons why mail sent to a validly registered voter might be returned as undeliverable or without the signed return receipt requested. For instance, the voter may be serving abroad in the military or away at college. Address errors, especially in urban areas, are common.  A voter may have forgotten to put his or her apartment number on the voter registration form.  Typographical errors in preparing the list of voters to whom mail will be sent – Gonzalez becomes Gonzales – can also result in a piece of mail being returned as undeliverable when in fact the voter may live there.  Moreover, such typographical errors on registration rolls can also lead one to conclude, in error, that someone is not registered to vote when in fact that person is validly registered. 

Most common, the voter may have recently moved but still be validly registered to vote. In vote caging schemes where a return receipt is requested, voters simply may not want to accept mail from that particular political party.  Reportedly, this was the case in Ohio in 2004, when African-American voters did not want to accept mail from the GOP.

Despite the fact that many voters who might end up on a caging list are validly registered, there is nothing illegal per se about compiling a list of voters. What is illegal under the Voting Rights Act and the U.S. Constitution is targeting vote caging at minority voters, i.e., directing mail to them, and only challenging their attempts to vote on Election Day.   

Lawsuits over the vote suppression scheme of caging are not commonplace, but they can be effective tools for remedying any further vote suppression techniques.  For example, since getting caught in a vote caging scheme in 1981 in New Jersey, the Republican National Committee has been under a federal consent decree not to engage in this practice.  Democrats went to court in 1987 to enforce the consent decree and were successful.  In 2004, the 1981 court order in the New Jersey case was again used by voters who argued that the vote challenge procedures being planned in Ohio in 2004 would be violative of the earlier consent decree.  The district court in the New Jersey case agreed, finding that the vote caging scheme used to generate the challenge lists was targeted at minority voters, and enjoined the RNC.  In upholding the trial court’s injunction and refusing to stay the district court’s order, the U.S. Court of Appeals for the Third Circuit noted: “[T]here is ample support for the factual findings of the District Court.  For example, the emails between the RNC and Michael Magan for the Ohio Republican Party, Exhibit 1, show collaboration and cooperation between the RNC and the ORP [Ohio Republican Party.”  DNC v. RNC, No.04-4186 (3rd Circuit, November 1, 2004) at 6. 

Who It Hurts

What happens when a voter on a caging list is challenged at the polls?

The procedures vary state by state. The voter may end up voting a provisional ballot (which is less likely to be counted). Or a voter may be asked to prove their place of residence, by producing a utility bill for instance (though many cannot provide such documentation on the spot). In some cases, a challenged voter may get flustered, or embarrassed, and may simply leave and not vote.  I personally have seen this happen with many elderly voters.   

In any case, the voter is delayed and may be intimidated.  If the challenging of voters slows down the voting process for other voters, it can create lines and discourage those with only minutes to spare who may be trying to vote on their lunch break.  Caging lists used to challenge voters can also create confusion in the polling place, which can become extremely busy either as the polls first open or as work lets out.  Again, delays can develop and voters get frustrated and leave. Collectively, the vote caging practice has the potential to disenfranchise thousands of voters, which is its aim.

What Did the Department of Justice Do About Vote Caging in 2004 ? 

In his recent book “Armed Madhouse,” author Greg Palast shares a frightening exposé about vote caging activities of the Bush Administration.  Palast writes that in the late summer and fall of 2004, the Republican National Committee developed a caging list of voters in predominantly black areas of Jacksonville, Florida.  The scheme came to light when Tim Griffin, then the Research Director and Deputy Communications Director for the RNC, mistakenly sent an email with the subject line “caging” to an email address at georgewbush.org, a political parody website whose operators sent it to the press.   Griffin had meant to send the list to a Republican operative with an email address at georgewbush.com, the official Bush campaign email suffix, but he mistakenly sent it to the .org address instead.

Griffin’s email contained an Excel spreadsheet “Caging-1.xls,” containing the names of 1,886 Florida voters, mostly black, including the names of black soldiers deployed abroad.[3]

Griffin, an aide to Rove, was later appointed interim U.S. Attorney for the Eastern District of Arkansas.  It seems likely that Griffin was appointed to this post under the authority of the now repealed provision of the USA PATRIOT Act (that permitted U.S. Attorneys to be replaced without Senate approval) so that Griffin would not be subjected to questioning about his vote caging activities in Florida.  Monica Goodling testified that Deputy Attorney General Paul McNulty failed to disclose his knowledge of Griffin’s caging scheme when he previously testified before Congress.  Perhaps McNulty will be asked about this when he testifies before the House Judiciary Committee tomorrow.

On the Senate side, Senators Kennedy and Whitehouse are asking tough questions as well.  On Monday they asked the Department of Justice’s Office of Inspector General and the Office of Professional Responsibility to conduct an investigation to determine who inside the Department knew about Griffin’s alleged caging at the time he was appointed U.S. Attorney, and whether any appropriate action was ever taken to remedy this violation of the Voting Rights Act.

Tough questions ought to be asked not just about vote caging in Florida, but also in Ohio. In 2004, the Ohio Republican Party developed a caging scheme and identified 35,000 mostly black newly registered voters in urban areas who either refused to sign for letters from the Republican Party or whose letters came back undeliverable.[4]

Prior to Election Day 2004, when the caging lists would be used to challenge voters at the polls, the caging scheme was challenged in court on two fronts.  In New Jersey, voters filed suit against the RNC for violating the 1982 consent decree.  Meanwhile, in Ohio, voters filed suit to challenge the Ohio law permitting political parties to post challengers in polling places on Election Day – challengers who would be armed with caging lists.[5]

While the court battles were playing out in New Jersey and Ohio in the days and hours leading up to the 2004 election – with the rights of minority voters hanging in the balance – did the Department of Justice step in to enforce the Voting Rights Act and attempt to stop the targeting of minority voters (who lean strongly Democratic in their voting choices) ?

No.  Perversely, the Justice Department actually sent a letter to the Ohio federal judge overseeing the lawsuit in defense of the challenge statute that was being used as a basis for the vote caging scheme.  According to DOJ, the vote challenge procedure in Ohio was important because it helped strike “a balance between ballot access and ballot integrity.”[6]  Never mind that it targeted minority voters, as the Jesse Helms campaign had done in 1990.   It appears DOJ felt ballot integrity was far more important to their political agenda than ballot access.

Assistant Attorney General Alex Acosta’s October 29, 2004 letter to District Judge Susan Dlott was unusual not just because it offered legal cover for the same practices that 12 years earlier DOJ had sued to stop.  It was rare for the DOJ to intervene in a case where its involvement was unsolicited, where it was not a party to the case, and where it had not previously been involved.  That was especially true in pre-election suits where the two major political parties were embroiled in a legal/political struggle.  Given what we now know about the Civil Rights Division and who was really running things in the Voting Section between 2003 and 2004, it seems likely that Hans von Spakovsky and/or Brad Schlozman wrote the aforementioned Ohio letter for Alex Acosta.  We now know that von Spakovsky was the de-facto Voting Rights Section Chief during his tenure, according to the former chief of that section, Joe Rich.  Von Spakovsky, of course, is the current FEC-nominee whose controversial tenure at DOJ was marked by one politically-motivated decision after another.   

(Acosta’s letter was sent just a few days after then-U.S. Attorney Bradley Schlozman filed the now-infamous election eve indictments against the four ACORN voter registration workers in Missouri.)

The Ohio Judge (Susan Dlott) refused to heed the advice of the Assistant Attorney General, found that permitting the challenges would have a racially discriminatory impact, and issued an order enjoining the Republican Party from placing challengers at the polls.[7]  The New Jersey federal court overseeing the consent decree also ordered Republicans in Ohio not to proceed with the caging scheme on Election Day and enjoined the RNC.[8]   (Although the Ohio order was overturned, the New Jersey order was not).

The Ohio case, and other election eve filings by DOJ in 2004, are additional examples of how a politicized Justice Department perverted its mission of defending the right to vote, and instead used the resources of the federal government to advance partisan and political goals.  As was the case with the Georgia Voter ID Law and the Texas re-redistricting plan, it was up to the federal courts to restore the voting rights of Americans denied by DOJ political appointees.

It’s Time to Shine a Light on Vote Caging

Vote caging, like most vote suppression schemes, thrives in darkness.  But the light is beginning to shine.  BBC reporter Greg Palast[9], who initially publicized Griffin’s caging emails, has been dogged in his pursuit of this story.  Slate recently published an excellent summary of the practice.[10]  Bloggers, notably The Brad Blog[11], have shone a light as well.  And legal scholar Rick Hasen has questioned why the vote caging issue has not received more play in the mainstream press.

After the 2004 controversy in Ohio, then House Judiciary Ranking Member John Conyers published a detailed, well-researched report entitled “Preserving Democracy: What Went Wrong in Ohio”[12] that exposed the vote caging discussed above.  His recommendations for stopping this practice deserve a fresh look.

As the 2008 elections rapidly approach, Congress needs to exercise its oversight responsibilities and ask: Will the Justice Department go to court to stop illegal vote caging ?  Will those responsible for developing, condoning, and defending the illegal vote caging in 2004 be held accountable ?

If the scandals over the firings of U.S. Attorneys and politicization of the Justice Department have an upside, it will be exposing the endemic and systematic voter suppression efforts, including vote caging, still being committed across the country.

And if that leads to putting an end to this noxious practice once and for all, it will be a first step towards restoring the credibility of the Department of Justice and fulfilling the promise of the Voting Rights Act that the right to vote, a right “preservative of all rights”[13] shall not be denied.



[1] Statement of Carl Golden, spokesman for Christine Todd Whitman, bragging about vote suppression efforts made in her 1993 successful gubernatorial race. Criminal Probe of Jersey Campaign, San Francisco Chronicle, Nov. 13, 1993.

[2] http://www.law.com/jsp/article.jsp?id=1179911108382&pos=ataglance

[3] http://www.bradblog.com/ ?p=4594

[4] Preserving Democracy: What Went Wrong in Ohio, Status Report of the House Judiciary Committee Democratic Staff, January 5, 2005.

[5] Spencer v. Blackwell, 2004 WL 2827758, (S.D. Ohio 2004). 

[6] http://www.usdoj.gov/crt/voting/hava/spencer.htm

[7] Order Granting Plaintiffs’ Motion for Temporary Restraining Order, Case No. C-1-04-738. This decision was overturned on appeal, again with the DOJ weighing in against the voters and claiming (unsuccessfully) that the voters lacked standing to sue under the Help America Vote Act (HAVA). 

[8] Order of U.S. District Court, District of New Jersey, Civ. No. 81-3876(DRD), Nov. 1, 2004.

[9] http://www.gregpalast.com/

[10] Dahlia Lithwick, Raging Caging: What the heck is vote caging, and why should we care?, Slate, May 31, 2007.

[11] http://www.bradblog.com/  

[12] Preserving Democracy: What Went Wrong in Ohio, Status Report of the House Judiciary Committee Democratic Staff, January 5, 2005.

[13] Yick Wo v Hopkins, 118 U.S. 356, 370 (1886).

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