Voter caging is the practice of sending direct mail to voters' home, compiling lists, called "caging lists," of voters whose mail was returned, and then challenging those voters at the polls. It is a practice used almost exclusively to discourage minorities from exercising their voting rights. "It is an unfortunate reality that, with so much at stake in the ballot box, organized efforts to suppress the vote go nearly as far back as the right to vote itself," Whitehouse said.
In an effort to press back, Whitehouse proposed the Caging Prohibition Act of 2007 (S.2305)Caging Prohibition Act of 2007 (S.2305), which would require that operatives who challenge a voter's right to cast a ballot must provide specific proof of that voter's ineligibility.
Bogus challenges of voter eligibility at the polls have been used for at least the last half-century, as documented by Project Vote's report "Caging Democracy: A 50 Year History of Partisan Challenges to Minority Voters." The findings of a pattern of Republican disenfranchisement of minorities have helped inspire reform bills in progress in Oregon, as well as Whitehouse's bill and a complementary bill filed in the House by Rep. John Conyers.
The technique involves partisan operatives sending "do not forward" letters to voters in areas heavily populated by people registered with the competing party. Letters that are returned undelivered are then offered as evidence that the voter no longer lives where he or she is registered.
This is even though, as Whitehouse noted, letters can be returned for a variety of reasons, such as that the recipient is in the military and stationed elsewhere, or is a student, or simply that there is an error in the name or address.
While vote caging has been around since at least the 1950s, it exploded into prominence in 2004, especially in swing states like Florida and Ohio. The extent of the practice was revealed last summer during Congressional hearings on the politicization of the Justice Department following the firings of U.S. Attorneys who wouldn't play ball with the administration.
The threat continues unabated, as both states have recently enacted particularly pernicious laws that make it much easier for Republican partisans to prevent minorities, the poor, and the elderly in Democratic strongholds from voting at the polls.
"It is especially galling that those who engage in vote caging often portray it as an anti-fraud measure, when it is really just the opposite: a nefarious way to compile obviously unreliable lists that will be used to challenge legitimate voters," Whitehouse said.
The committee's ranking member, Sen. Robert Bennett of Utah, made just such an argument after Whitehouse's testimony. "The tension between keeping ineligible people from voting, which is the reason why we have registration lists, and the desire to see that everybody who has the ability to vote should be able to vote without harassment, goes all the way back to the beginning of the Republic," Bennett said. "Regardless of how I may or may not feel about your bill, I would hope you would help us think about this tension and give us whatever suggestions you might have to help clean up registration lists that are filled with deadwood."
Whitehouse smoothly allowed the point, arguing that his bill seeks to balance that tension by requiring specific evidence of ineligibility before an individual voter can be struck from the rolls during an otherwise general purge.
Bennett countered, "Isn't it true that under HAVA (the Help America Vote Act) if someone is challenged by virtue of a voter caging list, he or she can still cast a provisional vote?"
Whitehouse: "Legally [yes], but the experience I think, and the reason for the voter caging practice has been that if you can intimidate voters at the polls, discourage them from going through the effort, turn them away or cause them to fear some consequence, they won't exercise rights they may have. Every voter does not come to the voting booth with a lawyer and a full appreciation of..."
Bennett interrupted testily. "I don't think you need a lawyer," he said. "You simply say, 'Gee, I'm eligible to vote.' Then you're told, 'Well, you can cast a ballot, but it will be provisional.'"
"Yeah, and if that worked every time I suspect the vote caging would never have developed," Whitehouse quipped, with a slight wink.
Other expert witnesses who spoke before the Senate committee provided extensive support for Whitehouse's assertions.