Almost a decade before the Voting Rights Act of 1965 was signed into law, Dr. Martin Luther King, Jr. gave a speech titled “Give Us the Ballot” in which he talked about the importance of equal voting rights. In it he said the following:
"So long as I do not firmly and irrevocably possess the right to vote I do not possess myself. I cannot make up my mind — it is made up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact — I can only submit to the edict of others."
With the first election of 2018 quickly approaching (PA18-March 13th) it’s imperative that we’re aware of the obstacles that get thrown in the way of full voter participation. From new and stricter voter ID laws to partisan-configured congressional districts, it’s a multi-front crusade. Challenging gerrymandering in the courts is just one method of attack at our disposal. The war is far from over, but we who support the complete exercise of voting rights regardless of party have just lost one key battle.
Last week, Newark-based District Court Judge John Michael Vazquez (a 2015 Obama appointee who came with a “well-qualified” rating from the ABA and blue-slipped by both New Jersey Democratic senators) announced that a 1986 consent decree with the Republican National Committee (RNC) was allowed to expire on December 1, 2017 and would not be extended. In the 1980’s the RNC was twice charged with violating the Voting Rights Act. The Democratic National Committee (DNC) took the RNC to court, accusing it of disenfranchising tens of thousands of African-American voters. The result was that the RNC agreed to enter into a consent decree, which would prohibit the party from certain tactics being used to suppress the vote. One of the devices being used was so-called “voter-caging”.
If there ever was a double entendre, “voter caging” is one in the most vile sense. Literally it refers to placing or “caging” categories of mail in steel shelves and files. In regard to voter suppression “voter caging” is the practice of sending mass direct mailings to registered voters by non-forwardable mail. Lists of those voters called “caging lists” are then compiled from the returned mail and purged from voter lists. Voters get knocked off the voter rolls because they fail to answer registered mail sent to where they’re not currently living-maybe because they’re in college or in the military! When voters show up at the polls they may be challenged and forced to cast a provisional ballot. If they can show that they recently moved or the address is in error, their vote may be counted. If not-“tough luck”! Voter caging is a way to file law suits in court targeting mass challenges to voters.
Voter caging is nothing new-it’s been happening since the 1950’s. The practice has been declared illegal under the Voting Rights Act of 1965, but many state laws have no such prohibition. The RNC has used the practice to target demographic groups they deem favorable to the opposing party. Conducted under voter list maintenance or “ballot security”, voter caging is used to disenfranchise minority voters in large numbers. The RNC was supposed to have stopped the practice in 1986 in accordance with the consent decree case, but it occurred in unprecedented numbers in the 2004 election. For example, during that election 130,000 mailings were sent by the RNC to predominantly minority areas in Philadelphia. The same thing happened in Cleveland, OH that year, where 35, 000 mailing were returned. The RNC then sent “poll watchers” out to challenge those voters right to vote, which brings me to my final point.
The 2018 election is just 10 months away. Without the consent decree, your guess is as good as mine as to what will happen. But one thing people should be concerned about is Trump’s past assertions of millions of people voting illegally and his allegations of voter fraud in cities like Philadelphia. If he and the RNC employ “vigilantes” to start showing up at the polls in the name of “ballot security”, we could again see minorities disenfranchised from the voting process and as Dr. King said, not living as democratic citizens.
Listen to University of California, Irvine elections law expert Rick Hasen discuss the consent decree. Hasen also publishes the Election Law Blog.
posted by Amy Levengood