GOP has a history of voter ‘caging,’ according to Democrats’ lawsuit

The lawsuit filed yesterday by the Obama campaign against the Republican National Committee (RNC) over the use of foreclosure lists to challenge voters at the polls, offers a glimpse into a longstanding but shadowy GOP practice known as “voter caging.”

The 24-page filing incorporates Michigan Messenger’s report last week that a GOP official in Macomb County cited plans to use such lists to challenge voters in November into a broader narrative based on decades of Democratic complaints about how Republicans seek to limit turnout among low-income and African American voters by compiling information about their mailing addresses.

Caging originated in 1981, according to the DNC, when the RNC formed an operation called National Ballot Security Task Force. The task force sent out postcards in New Jersey to predominately Hispanic and black districts with a “do not forward” requirement. The 45,000 cards that were returned were then used to create a list of voters for the GOP to challenge at the polls, on the grounds that the voters no longer lived at the addresses on their voter registration cards.

The DNC filed a lawsuit against the RNC over this practice, which resulted in a 1982 consent decree. The RNC agreed not to engage in the same practice “where the purpose or significant effect of such activities is to deter qualified voters from voting.” In 1986, however, the RNC did the same thing in Louisiana, according to the lawsuit when it attempted to get 31,000 voters removed from the rolls based solely upon the return of a mailed postcard. The 1982 case was then reopened, and the consent decree was amended in 1987 to require that the RNC get prior court approval before engaging in any activities to combat voter fraud.

The term “caging,” according to Talking Points Memo, is “a direct marketing term that simply describes the processing of returns from a mailing.” One direct mail consultant told TPM that the term derives from old postal “cages,” the hundreds of cubby holes that fronted postal desks for sorting. Those who sorted the mail were called “cagers.”

The Democrats claim the Ohio Republican Party in 2004 to attempt to disenfranchise 35,000 voters via caging. The New Jersey court again found this a violation of the original 1982 consent decree and issued an injunction against the practice a third time. That court order was then stayed (or halted) by the 3rd Circuit Court of Appeals on the eve of the election. According to the complaint, no opinion was issued to explain that action. The long lines at some Ohio polling places was a big story on Election Day 2004.

The DNC argues in this complaint what while these practices are usually done under the rhetorical guise of “ballot security” or “election integrity” programs, “they have but one purpose — to discourage, intimidate, and suppress the vote of individuals” that the Republicans think are likely to vote Democratic. That, according to the Democrats, is why they are usually targeted at minorities and at lower- and middle-income voters, as well as why they may now be targeting those who have had their homes foreclosed.

The complaint then lists a number of reasons why the issuing of a foreclosure notice is not evidence that a given voter no longer lives at a given address:

First, that a foreclosure notice has been filed against a particular property says nothing about who resides there. Foreclosure addresses ownership, not residence, which determines the appropriate location for voting…

Second, even if the resident and the owner of a property are one and the same, publication of a foreclosure notice begins foreclosure proceedings, but it does not require anyone to leave his or her home. It is commonplace throughout the United States for homeowners who are unable to make mortgage payments to remain in their homes well after foreclosure proceedings have begun in order to negotiate with lenders and attempt to refinance. In Michigan, homeowners may have up to one year and four weeks following initial notice of foreclosure before they must actually leave the home, even assuming the foreclosure proceeds to conclusion without a redemption or other agreement. As a result, there is no reason to believe that someone who has received a foreclosure notice has actually left his or her home.

The complaint also notes that even if people have lost their homes and been forced to move, under Michigan law they can still vote from their old precincts if they moved within the same city, and if they moved to another city they can still vote at their old precinct if the move took place within 60 days of the election. Thus, foreclosure lists do not reliably indicate whether a voter resides at the address on the list or whether they are still eligible to vote at the precinct where they are being challenged.

The complaint then addresses the purpose behind these challenges, which Bob Bauer, general counsel to the Obama campaign, said on Tuesday was to “create havoc, long lines at the polling place and a clogged voting process.” Under Michigan law, when a voter is challenged at the polling place the person being challenged “shall stand to one side until after unchallenged voters have had an opportunity to vote, when his case shall be taken up.”

This creates an embarrassing situation where a voter must answer public questions about having their house foreclosed upon and where they must then present proof of their current address–like utility bills–which they almost certainly will not have with them. Thus, the complaint alleges, the purpose of such challenges is to “attempt to humiliate them publicly and thus suppress the right to vote of individuals whom Defendant Republicans do not believe are likely to support them.”

The DNC argues that using foreclosure lists to challenge voters is illegal because Michigan law requires that voters can only be challenged at the polling place when there is “good reason to believe” that the voter “is not a registered elector.” Because foreclosure lists do not constitute a good reason to believe that a given voter does not live at a given address, they contend, appearance on such a list cannot constitute a valid reason to challenge a voter.