is a method of challenging the registration status of voters to potentially prevent them from voting in an election. It refers to the practice of sending direct mail to addressees on the voter rolls, compiling a list of addressees from which the mail is returned undelivered, and using that list to purge or challenge voters’ registrations on the grounds that the voters do not legally reside at registered addresses. This typically results in the voters' having their votes discarded or submitted through the use of provisional ballots requiring further registration confirmation.
While this practice is considered legal in many states and is in some cases engaged in by the state's registrar of voters, it has been challenged in the courts and in some cases where it appeared to have a racial component it has been declared illegal under the Voting Rights Act
The Voting Rights Act of 1965 is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S....
. For example in the 2008 US Election, Terri Lynn Land
Terri Lynn Land was the 41st secretary of the State of Michigan. Land graduated from Grandville High School, and later received a bachelor of arts in political science from Hope College in Holland, Michigan...
, the Secretary of State of Michigan, was found to be purging thousands of voters from voting rolls based on Voter ID cards being returned as undeliverable. The American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
(ACLU) took the Secretary of State to court over the purges. Judge Stephen J. Murphy
Stephen Joseph Murphy III is a federal judge on the United States District Court for the Eastern District of Michigan, and a former United States Attorney for the Eastern District of Michigan from 2005-2008...
ruled the purge illegal under the National Voting Rights Act (NVRA) of 1993 and directed Land to reinstate affected voters. (See full ruling here
The argument that vote caging should be illegal is that it could disenfranchise qualified voters simply because of the high possibility that data errors in the mailing list and voters' changing addresses could result in undelivered mail, rather than any problem with their qualifications. The fact that the mailings used to cage voters have had 'do not forward' printed on them resulted in disproportionately disfranchising of students away at college, citizens who move often, and soldiers overseas. In addition, targeting certain neighborhoods with a history of voting for one political party while not targeting areas dominated by the opposing party may lead to a racial component in the disqualifications which raises a serious legal issue under the Voting Rights Act.
Typically what will happen is a party will send out non-forwardable, first class mail to voters or particular voters they want to target (often assumed to be a demographic that belongs to the opposing party). They compile a list of voters for whom mail has been returned as undeliverable. This list is called a caging list. In some cases such mail can be returned at a rate of 1 in every 15 letters sent out; this was shown in Ohio in 2008 when the Board of Elections had 600,000 letters of voter confirmation returned as undeliverable. The party uses caging lists created by themselves or by the Board of Elections to challenge the registration status of voters and potentially purge them from the voting rolls under state laws which allow voters whose registrations are suspect to be challenged. When the voter turns out to vote, he or she may be challenged and required to cast a provisional ballot. If investigation of the provisional ballot demonstrates that the voter has just moved or there is an error in their address and they are legally registered then their vote should be counted. If the investigation proves that they are not legally registered then their vote will not be counted.
Legality in the US
The clause in the National Voting Rights Act of 1993 (NVRA) which has been interpreted to prohibit voter caging is:
Pursuant to the NVRA, a voter may not be removed from the voters list unless (1) the voter has requested removal; (2) state law requires removal by reason of criminal conviction or mental capacity; (3) the voter has confirmed in writing that he has moved outside the jurisdiction maintaining the specific voter list, or (4) the voter both (a) has failed to respond to a cancellation notice issued pursuant to the NVRA and (b) has not voted or appeared to vote in the two federal general elections following the date of notice.
Under this clause voter caging may be legal if the primary purpose is to identify those who are not properly registered to vote and prevent them from voting illegally, but not if the purpose is to disenfranchise legitimately registered voters on the basis of a technicality.
In 1981 and 1986 the Republican National Committee (RNC) sent out letters to predominantly African-American neighborhoods. When tens of thousands of them were returned undeliverable, the party successfully challenged the voters and had them deleted from voting rolls. Due to the violation of the Voting Rights Act, the RNC was taken to court. Its officials entered a consent decree which prohibited the party from engaging in anti-fraud initiatives that targeted minorities or conducting mail campaigns to "compile voter challenge lists."
2004 US Election
BBC journalist Greg Palast
Gregory Allyn Palast is a New York Times-bestselling author and a freelance journalist for the British Broadcasting Corporation as well as the British newspaper The Observer. His work frequently focuses on corporate malfeasance but has also been known to work with labor unions and consumer...
obtained an RNC document entitled "State Implementation Template III.doc" that described Republican election operations for caging plans in numerous states. The paragraph in the document pertaining to caging was:
V. Pre Election Day Operations New Registration Mailing
At whatever point registration in the state closes, a first class mailing should be sent to all new registrants as well as purged/inactive voters. This mailing should welcome the recipient to the voter rolls. It is important that a return address is clearly identifiable. Any mail returned as undeliverable for any reason, should be used to generate a list of problematic registrations. Poll watchers should have this list and be prepared to challenge anyone from this list attempting to vote.
- Shortly before the 2004 election, Palast also obtained a caging list for Jacksonville, Florida
Jacksonville is the largest city in the U.S. state of Florida in terms of both population and land area, and the largest city by area in the contiguous United States. It is the county seat of Duval County, with which the city government consolidated in 1968...
, which contained a high number of African Americans and registered Democrats. The caging list was attached to an email which a Florida Republican party official was sending to RNC headquarters official Tim Griffin.
- The Republican National Committee sent letters to predominantly urban minority areas in Ohio. When 35,000 letters were returned as undeliverable, the party employed poll watchers to challenge the voters. Voting rights groups challenged the RNC in a case that went to the Supreme Court, but the RNC was not stopped from challenging those voters. Similarly, the RNC sent out 130,000 letters in Philadelphia hoping to cage voters there. Philadelphia is a city with a majority African American population that votes heavily Democratic. The Republicans were attempting to cage votes by people who were likely to vote for the Democratic candidates.
- In the Ohio court challenge, the RNC submitted a caging list that targeted urban and African-American areas in and around Cleveland.
- Journalists found evidence that the Republican National Committee (RNC) attempted to use caging to suppress votes in five states in the 2004 US presidential election. For example, in New Jersey RNC officials used caging lists to challenge absentee ballots and absentee ballot requests.
2008 US Election
- As noted earlier, the Republican Secretary of State in Michigan was found purging voters from voting rolls when voter ID cards were returned as undeliverable. In the court challenge, the federal judge ordered the state to reinstate the voters. The judge ruled that the state's actions were in violation of the NVRA. His decision noted that there was no way to prevent qualified voters from being disfranchised as their cards may be returned as undeliverable due to postal error, clerical error, inadvertent routing within a multi-unit dwelling, and even simple misspelling or transposition of numbers in an address.
- In December 2007, Kansas GOP Chair Kris Kobach sent an email boasting, "[T]o date, the Kansas GOP has identified and caged more voters in the last 11 months than the previous two years!"
- Republicans sent out fundraising mailers to voters in five Florida counties: Duval, Hillsborough, Collier, Miami-Dade and Escambia, with 'do not forward' on the letters. The mailers included inaccurate Voter ID numbers and ostensibly confirmed with voters they were registered as Republican. The RNC declined to discuss the mailer with the St. Petersburg Times
The St. Petersburg Times is a United States newspaper. It is one of two major publications serving the Tampa Bay Area, the other being The Tampa Tribune, which the Times tops in both circulation and readership. Based in St...
. A representative denied the mailing had anything to do with caging. "Two top Florida elections officials, both Republicans, faulted the GOP mailing, calling it "confusing" and "unfortunate" because of a potential to undermine voter confidence by making them question the accuracy of their registrations." Some officials expressed concern that the RNC would try to use a caging list derived from the mailers.
- In Northern California reports of voter caging emerged when letters marked 'do not forward' were sent to Democrats with fake voter ID numbers. The description of the letters matches the letters that were sent out in Florida. See the caging letter that was sent out here. Many details on the letters were false; for example, the letters referred to a Voter Identification Division but RNC personnel said they had no such department. The RNC did not return calls from a news organization regarding the letters.
- On October 5, 2008 the Republican (but elected on the Democratic ticket) Lt. Governor of Montana, John Bohlinger
John Bohlinger, Jr. is the current Lieutenant Governor of Montana. Bohlinger for lieutenant governor ran as a Republican on a bipartisan ticket headed by Democrat Brian Schweitzer...
, accused the Montana Republican Party of vote caging to purge 6,000 voters from three counties which trend Democratic. These purges included decorated war veterans and active duty soldiers.
- The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
found in its review of state records that unlawful actions in six states led to widespread voter purges, which could have impact on the 2008 elections. Some of the actions were apparently the result of mistakes by the states' handling voter registrations and files as they tried to comply with a 2002 federal law related to running elections. While neither party was singled out, because the Democratic Party registered more new voters this year, Democratic voters were more adversely affected by such actions of state officials.