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Posted July 23, 2007 by J. Gerald Hebert and Brian Dupre

Vote Caging and the Attorney General

When Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee tomorrow morning, vote caging by the Republican Party and the related actions and inactions by the Department of Justice (DOJ) deserve careful examination.  When former Deputy Attorney General Paul McNulty testified before Congress last month, he offered to have DOJ look into the issue of vote caging (“If you’re raising with me as Deputy Attorney General the question of caging votes, I’m very happy to work with you on that concern.”).[1] It would be interesting to ask the Attorney General for a progress report on how the DOJ review/inquiry into vote caging is going. 

Conspiracies to stop African-Americans from exercising their constitutional right to vote aren’t new – and neither is vote caging. The Republican National Committee has been under a federal consent decree not to engage in the practice since getting caught in the 1981 gubernatorial election in New Jersey. Despite the injunction, which remains in effect, vote caging schemes continue to be used as an integral part of an ongoing campaign to suppress minority voting rights.

To bring these schemes to an end will require vigorous prosecution by the United States Department of Justice. But the Department’s priorities have shifted over the years, with the Bush-Ashcroft-Gonzales Justice Department not only ignoring vote caging schemes, but actively working to give them a boost in the courts. 

Contrast, for example, the Department of Justice’s efforts in 1990 in North Carolina under President Bush’s father to the Department’s actions in the 2004 election cycle in Ohio.  In 1990, the North Carolina Republican Party and the Jesse Helms for Senate campaign engaged in vote caging by sending 44,000 postcards to black voters, giving them incorrect information about voting and threatening them with criminal prosecution.  The plan was to use the mailing to compile a caging list.  In response, the Bush I Justice Department, where I served at the time as a federal prosecutor of voting discrimination cases, filed a federal lawsuit against the GOP and Helms’ campaign and obtained declaratory and injunctive relief.  In 2004, when the Ohio Republican Party was sued by voters prior to the election to stop what appeared to be a similar vote caging scheme in progress, the Bush II Justice Department did not file its own lawsuit to stop the vote caging but instead intervened in a highly unusual manner on the opposite side: by writing a letter to the federal judge overseeing the case and coming to the defense of the Ohio’s GOP efforts!  The judge appears to have ignored the letter, which was totally unsolicited and contrary to the Department’s tradition of avoiding intervention in pre-election litigation. 

It’s one more example of how, under this Administration, a politicized Justice Department has perverted its mission of defending the right to vote, and instead harnessed the resources of the federal government to attack that very right for partisan political purposes.

The Legal Center has gathered information on vote caging activities in multiple states over the last few decades.  The vote caging issue continues to be a topic of discussion here in DC, often emerging in testimony on Capitol Hill as the scandal over the firings of U.S. Attorneys continues to unfold.  The issue has yet to be fully probed, and tomorrow’s appearance by Attorney General Gonzales before the Senate Judiciary Committee offers another opportunity to press him on his knowledge of vote caging schemes.

As the following state-by-state list of some high profile instances of vote caging shows, a Department of Justice review of this issue as promised by Paul McNulty could take quite some time, because there is a lot out there.

The 1980’s: The Early Days of Vote Suppression Through Caging

New Jersey 1981

The notorious 1981 New Jersey gubernatorial election between Republican Tom Kean and Democrat Jim Florio provided a window into voter intimidation and suppression techniques, vote caging in particular. The Republican National Committee used vote caging to compile a list of more than 45,000 voters, mostly Black and Latino, to challenge at the polls.[2] Republican “ballot security” teams hired armed guards with armbands to police polling places.

Kean won by less than 2,000 voters, but only after an almost month-long recount. Both state and county prosecutors launched investigations into voter intimidation. A federal court eventually entered a consent decree that prohibited the RNC from engaging in vote caging.[3]

Louisiana 1986

In the 1986 election, the RNC used vote caging to compile a list of 31,000 voters, mostly black, that it attempted to have thrown off the voter rolls.[4] At the time, Kris Wolfe, the Republican National Committee Midwest political director, wrote Lanny Griffith, the committee's Southern political director, “I know this is really important to you. I would guess this program would eliminate at least 60,000 to 80,000 folks from the rolls. If this is a close race, which I assume it is, this could keep the black vote down considerably.”[5]

Following this caging scandal, both parties agreed to amend the original 1982 consent decree to require that the RNC would submit to the court any ballot security plan for approval.

The 1990’s:  Vote Suppression Through Caging Continues

North Carolina 1990

In October of 1990, when the black Democratic candidate for U.S. Senate, Harvey Gantt, was leading incumbent Jesse Helms in the polls, the Helms for Senate Committee and the North Carolina Republican Party developed a vote caging scheme.

As described above, according to a lawsuit brought by the Bush I Justice Department, on October 29, 2004, at least 44,000 postcards were sent, without a disclaimer that they were paid for by a political party, exclusively to black voters in North Carolina.[6]  The postcards served two purposes; first, they were intended to directly intimidate and threaten black voters and to give them false information about voting; second, and more insidiously, the undelivered postcards would be used to create a caging list of black voters with the intent of challenging them at the polls. According to the suit, “This effort was terminated shortly before the election and subsequent to the initiation of an investigation … by the United States Department of Justice.”[7] Later a consent decree was entered against defendants that allowed the court oversight until 1996.

The 2004 Elections: Vote Caging Suppression At Full Bore

Florida 2004

The 2000 election in Florida raised the stakes and also showed the effectiveness of disenfranchising black voters in a close election. Both parties trained their sights on the state again in 2004 and vote caging became an integral part of the Republican Party plan in the Sunshine State.

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 e-mail with the subject line “caging” to an e-mail 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 e-mail address at georgewbush.com, the official Bush campaign e-mail suffix.

Griffin’s e-mail 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.[8]

As the BBC reported, “An elections supervisor in Tallahassee, when shown the list, told Newsnight: ‘The only possible reason why they would keep such a thing is to challenge voters on Election Day.’”[9] A recent analysis of the names on the caging list showed that the Jacksonville caging preferentially selected blacks and excluded whites.[10]

Griffin was later appointed an interim U.S. Attorney in Arkansas. The White House refused to submit him to the Senate for confirmation out of concerns over his involvement in vote caging, as Monica Goodling verified in her testimony before the Senate Judiciary Committee.[11]

Nevada 2004

In Clark County Nevada, the former state Republican Party executive director, Dan Burdish, attempted to cage 17,000 voters weeks prior to the 2004 election. The voters had been put on an “inactive” list when mail sent to their addresses was returned.

The Las Vegas Review Journal reported, “Burdish said he only targeted Democratic voters because ‘I'm a partisan Republican, I admit it.”[12]

Local election administrators objected to the challenge, including Registrar of Voters Larry Lomax. As reported by the Review Journal, “Lomax said he can see no legitimate reason why Burdish would challenge   the voters. ‘The law already tells us what to do with inactive voters,’ Lomax said. ‘The law provides a remedy for these people, and I'd guess that the only point in a challenge   would be an attempt to intimidate voters.’”[13]

Ohio 2004

More so than Florida, Ohio was ground zero for the hotly contested 2004 election – and also a hotbed of voter intimidation.

The Ohio Republican Party developed a caging scheme and identified 35,000 newly registered voters in urban areas, mostly black, who either refused to sign for letters from the Republican party or whose letters came back undeliverable.[14] An attorney for the Ohio Republican Party even admitted that the plan was to use the returned letters from minority neighborhoods to challenge voters.[15]

Prior to Election Day, when the caging list 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. The RNC argued that the consent decree only applied to it, not the Ohio Republican Party, which planned to supply the challengers, and therefore was inapplicable to the Ohio election.[16] The federal court rejected that argument, and, on Nov. 1, 2004, ordered Republicans in Ohio not to proceed with the caging scheme on Election Day.[17]

Meanwhile, in Ohio, voters filed suit to challenge the Ohio law permitting political parties to post challengers in polling places on Election Day – challengers armed with caging lists.[18]

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?

Unsurprisingly for anyone who’s followed the ongoing scandal over the politicization of the Civil Rights Division, the answer is “of course not.” Perversely, the Justice Department sent a letter to the Ohio federal judge overseeing the lawsuit to tell her that the challenge statute that was to be used as part of the vote caging scheme was perfectly fine.[19]

Assistant Attorney General Alex Acosta’s Oct. 29, 2004 letter to District Judge Susan Dlott was unusual not just in that it attempted to offer legal cover for the same practices that 12 years earlier DOJ had sued to stop, but also because it was nearly unprecedented for DOJ to intervene in an election eve case in which it had not previously participated, its involvement was unsolicited, and it was not a party,. (Acosta’s letter was sent just a few days after then-U.S. Attorney Bradley Scholzman filed the now-infamous indictments against the four ACORN workers in Missouri.)

Judge 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.[20] In the end, the caging scheme was stymied. (For a thorough discussion of other voter intimidation techniques that succeeded, see Preserving Democracy: What Went Wrong in Ohio, Status Report of the House Judiciary Committee Democratic Staff, January 5, 2005 [a.k.a. “the Conyers Report”].)

Pennsylvania 2004

The Pennsylvania GOP targeted for caging only voters in Philadelphia, which is approximately 45% black, according to Census data.[21] Voters in other parts of the state, which is 85% White,[22] were not caged.

The party compiled a caging list of 10,000 returns from a Republican mailing purporting to welcome new registrants in Philadelphia to the political process, and then announced plans to challenge those 10,000 voters on Election Day.[23] The Republican speaker of the state House admitted the campaign tactics were intended to “keep down” the vote in Philadelphia.[24]

As The Inquirer reported, “State Republicans released additional details yesterday from their list of 10,000 letters to Philadelphia   voters that they said were returned as undeliverable. They said they would use this list to challenge voters at the polls today - a type of challenge similar to one that federal judges have barred Republicans from using today in Ohio.”[25]

According to the Bucks  County Courier Times:

“Election officials and other observers, however, say the 7.6 percent rate of returned letters isn't surprising in a large city with many transient, low-income neighborhoods. ‘This is a mobile population,’ said Randall Miller, who teaches a course on elections at St. Joseph's University. ‘Some people are living in places where they don't really have addresses, [such as] shelters. They have every right to vote.’”[26]

When the media asked the GOP for the list, the party initially refused but later provided just six names and addresses.[27]

Wisconsin 2004

The Wisconsin Republican Party announced the Saturday before the 2004 election plans to challenge 37,180 voters on a caging list developed by the party.[28] The Wisconsin GOP targeted for caging only voters in Milwaukee, which is approximately 40% black and 55% minority (black and Hispanic), according to Census data.[29] Voters in all other parts of the state, which is 91% white, were not caged.

In this caging scheme, the party used a commercial software program to compare addresses on voter registration cards to a postal service database of known addresses, and then announced plans to challenge 37,180 voters at the polls whose addresses, the party claimed, didn’t match.

The non-partisan City Attorney called the plan “outrageous.” It was. Of the caged list, 13,300 of the addresses simply listed incorrect apartment numbers. Some 18,200 more cases stemmed from the lack of an apartment number for a resident of an existing building.[30]

Of the remaining 5,000 or so addresses, the City Attorney’s office found hundreds actually did exist, and many of the other non-matches were likely due to clerical errors. Had the plan been allowed to go forward, thousands of legally-registered, apartment-dwelling black voters would have been challenged because of a clerical error involving apartment numbers.  The attempt was stopped by the City Attorney and Election Commission.

“A Nationwide Vote Caging Scheme”

In Ohio, Florida, Wisconsin, Pennsylvania, and Nevada – all battleground states with significant minority populations living in urban communities – vote caging was the voter suppression method of choice for Republicans in 2004. It’s no coincidence.

Despite the sworn declaration of Deputy RNC Chair Maria Cino that the RNC has not "been involved in any efforts to suppress voter turnout,"[31] e-mails circulated among top RNC and Bush-Cheney campaign officials suggest otherwise.  A document for use by state GOP officials in developing campaign plans worked on by Bush-Cheney campaign lawyer Christopher Guith provides a template of plans for vote caging.[32]

An e-mail from Guith declares “we can do this in NV, FL, PA, and NM[33] because we have a list to run,” referring to a plan to challenge absentee ballots using a caging list.[34] Terry Nelson, Political Director of the 2004 Bush/Cheney Campaign, was included on the e-mail.

Those who perpetrate these caging schemes know full well the invidiously racially discriminatory nature of their efforts, and make every effort to cover their tracks and distance themselves from the vote suppression schemes they unleash.  Thus, in another e-mail chain involving the vote caging in Ohio later enjoined by a federal judge, Guith, Tim Griffin and others discuss “the risk of having GOP fingerprints” on the caging lists.[35]

Your State 2008 ? 

As we enter what is sure to be another hotly contested, high stakes election cycle, there is reason to believe vote caging will once again be used illegally to suppress the black vote for partisan gain.  The recommendations of the Conyers report on how to stop vote caging have yet to be heeded. The RNC has shown that federal consent decrees are inadequate to stop vote caging from again and again rearing its ugly head.

Unfortunately, those at the DOJ who failed to stop – and in some cases actually supported – the voter suppression of 2004 have not been held accountable.  Instead, they’ve been rewarded with promotions for their partisan misdeeds. Alex Acosta, the Assistant Attorney General who sent the letter to the Ohio federal judge in defense of the vote caging scheme there, was appointed in May 2005 to the post of U.S. Attorney for the Southern District of Florida – a past and possibly future site for voting rights controversies. And the DOJ political appointee who likely drafted the letter to the Ohio federal court in support of the 2004 vote caging scheme, Hans von Spakovsky, has been nominated for the Federal Election Commission,[36] the agency charged with overseeing the fair administration of our election laws.

With the stakes in the upcoming 2008 elections being so high, it is likely that both major political parties will once again direct their efforts at combating alleged voter fraud (the GOP) and fighting alleged vote suppression schemes (the Democrats).  Given the politicization of the DOJ, it is highly unlikely that Americans will see efforts to bring an end to vote caging among the enforcement priorities of the Civil Rights Division.   That’s unfortunate because it means that once again the burden to put an end to these tactics will be on private litigants.  Congress can and should do something: hold hearings devoted exclusively to vote caging, bring in Party officials, and ask them under oath about these past efforts.  Such hearings might have a chilling effect on those who were otherwise planning a new round of vote caging activities.  Caging voters will continue to be a tool unless and until Congress exposes the tactic for what it is:  an effort to influence the outcome of elections by suppressing the voting rights of minorities.  



[1] House Judiciary Subcommittee on Commercial and Administrative Law, June 21, 2007,

http://judiciary.house.gov/oversight.aspx?ID=340

[2] Robert Schwaneberg, Voting suit revisits intimidation claims; Letters targeting Ohio minorities said to violate settlement after Kean-Florio race in ’91, New Jersey Star Ledger, Nov. 1, 2004. Also see Rachel E. Berry, Democratic National Committee v. Edward J. Rollins: Politics as Usual or Unusual Politics, 2 Race & Ethnic Anc. L. Dig. 44 (Spring 1996).

[3] Jo Becker, GOP Challenging Voter Registrations; Civil Rights Groups Accuse Republicans Of Trying to Disenfranchise Minorities, Washington Post, October 29, 2004

http://www.washingtonpost.com/wp-dyn/articles/A7422-2004Oct28.html

[4] Jo Becker, GOP Challenging Voter Registrations; Civil Rights Groups Accuse Republicans Of Trying to Disenfranchise Minorities, Washington Post, October 29, 2004

http://www.washingtonpost.com/wp-dyn/articles/A7422-2004Oct28.html

[5] GOP Memo Admits Plan Could 'Keep Black Vote Down', Los Angeles Times, Oct. 25, 1986.

[6] Complaint for Declaratory and Injunctive Relief, US v. North Carolina Republican Party; Helms for Senate Committee, et al., Feb. 26, 1992

[7] Id.

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

[9] Greg Palast, New Florida vote scandal feared, bbc, Oct. 26, 2004, http://news.bbc.co.uk/1/hi/programmes/newsnight/3956129.stm

[10] http://www.dailykos.com/story/2007/6/26/113923/608

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

[12] Erin Neff, Challenge to 17,000 voters blocked, Las  Vegas  Review -Journal , Oct. 12, 2004.

[13]  Id. 

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

[15] Bill Sloat, Judge Orders Halt to County  Hearings Challenging Voters, PLAIN DEALER,

Oct. 30, 2004, at A1.

[16] Memorandum in Opposition to Intervener’s Application for a Preliminary Injunction and in Support of Defendant’s Motion to Modify the Consent Decree, Nov. 1, 2004.

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

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

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

[20] Order Granting Plaintiffs’ Motion for Temporary Restraining Order, Case No. C-1-04-738.

[21] Census Data at: http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=&geo_id=16000US4260000&_geoContext=01000US%7C04000US42%7C16000US4260000&_street=&_county=philadelphia&_cityTown=philadelphia&_state=04000US42&_zip=&_lang=en&_sse=on&ActiveGeoDiv=&_useEV=&pctxt=fph&pgsl=040&_submenuId=factsheet_1&ds_name=ACS_2005_SAFF&_ci_nbr=null&qr_name=null&reg=null%3Anull&_keyword=&_industry=

[22] Census Data at: http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=&geo_id=04000US42&_geoContext=01000US%7C04000US42%7C16000US4260000&_street=&_county=philadelphia&_cityTown=philadelphia&_state=04000US42&_zip=&_lang=en&_sse=on&ActiveGeoDiv=&_useEV=&pctxt=fph&pgsl=160&_submenuId=factsheet_1&ds_name=ACS_2005_SAFF&_ci_nbr=null&qr_name=null&reg=null%3Anull&_keyword=&_industry=

[23] Suzette Parmley, Michael Currie Schaffer and Rose Ciotta, Voting access, challenges debated with hours to go. The city's top election administrator said a letter from state Republicans sought to suppress the vote. GOP officials said they would question eligibility of thousands, The Philadelphia Inquirer, Nov. 2, 2004.

[24] In Philly, GOP charges Dems with voter fraud, Bucks  County Courier Times, Oct. 27, 2004.

[25] Suzette Parmley, Michael Currie Schaffer and Rose Ciotta, Voting access, challenges debated with hours to go. The city's top election administrator said a letter from state Republicans sought to suppress the vote. GOP officials said they would question eligibility of thousands, The Philadelphia Inquirer, Nov. 2, 2004.

[26] In Philly, GOP charges Dems with voter fraud, Bucks  County Courier Times, Oct. 27, 2004.

[27] Emilie Lounsberry, Craig R. McCoy and Rose Ciotta, The Election Day scene is set for a litigation mess, The Philadelphia Inquirer, Oct. 31, 2004.

[28] Greg Borowski, GOP demands IDs of 37,000 in city; City attorney calls new list of bad addresses ‘purely political’, Milwaukee Journal Sentinel, Oct. 31, 2004.

[29] Census Data at: http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=ChangeGeoContext&geo_id=16000US5553000&_geoContext=&_street=&_county=milwaukee&_cityTown=milwaukee&_state=04000US55&_zip=&_lang=en&_sse=on&ActiveGeoDiv=&_useEV=&pctxt=fph&pgsl=010&_submenuId=factsheet_1&ds_name=ACS_2005_SAFF&_ci_nbr=null&qr_name=null&reg=null%3Anull&_keyword=&_industry=

[30] Greg Borowski, GOP demands IDs of 37,000 in city; City attorney calls new list of bad addresses ‘purely political’, Milwaukee Journal Sentinel, Oct. 31, 2004.

[31] http://i172.photobucket.com/albums/w31/drational/Cino2.jpg

[32]http://www.epluribusmedia.org/features/2007/documents/State%20Implementation%20Template%20III.doc

[33] To date any efforts to cage votes in New Mexico have not been covered by the local or national media.

[34] http://www.epluribusmedia.org/features/2007/images/Allstates.jpg

[35] http://i172.photobucket.com/albums/w31/drational/Fingerprints.jpg

[36] http://www.clcblog.org/blog_item-131.html

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