As two federal judges in Ohio prepared to rule on lawsuits contending that the state's procedure for challenging an individual's right to vote is unconstitutional, the Justice Department weighed in with an unusual letter brief supporting the statute.
Assistant Atty. Gen. R. Alexander Acosta sent a brief during the weekend to U.S. District Judge Susan J. Dlott, who held a rare Sunday night hearing in one of the cases, a lawsuit filed late last week by Donald and Marian Spencer. The Spencers, an elderly African American couple, are longtime civil rights activists in Cincinnati.
The Spencers' lawsuit contends that the Ohio procedure, which was enacted in 1886 and permits individuals to challenge the legitimacy of a voter at the polling place, is a vestige of "Jim Crow" laws and creates the possibility of disenfranchising a voter without due process of law.
Another lawsuit, pending in federal court in Akron, raises similar contentions. It was filed by two Akron residents, two residents of nearby communities and the Summit County Democratic Central Committee.
Ohio's Republican secretary of state, J. Kenneth Blackwell, is a defendant in each case, along with local election officials in the respective counties.
Acosta's letter urged the judge to heed the Help America Vote Act, or HAVA, which was passed in 2002 to help remedy some of the problems in the 2000 presidential election. In particular, the letter said HAVA permitted a voter whose "eligibility to vote is called into question" to cast a provisional ballot.
"We bring this provision to the court's attention because HAVA's provisional ballot requirement is relevant to the balance between ballot access and ballot integrity," Acosta wrote.
"Challenge statutes, such as those at issue in Ohio, are part of this balance," he added. "They are intended to allow citizens and election officials, who have information pertinent to the crucial determination of whether an individual possesses all of the necessary qualifiers to being able to vote, to place that information before the officials charged with making such determinations."
Acosta's letter also stated that "nothing" in the Voting Rights Act barred challenge statutes. Consequently, Acosta concluded, "a challenge statute permitting objections based on United States citizenship, residency, precinct residency, and legal voting age like those at issue here are not subject" to a challenge based on the language of the law alone, because those criteria are "not tied to race."
Alphonse A. Gerhardstein, a veteran civil rights lawyer who represents the plaintiffs in the Cincinnati case, said he thought "the letter was highly irregular."
"The Justice Department is not a party to the case. They have not filed a motion to intervene in the case or filed an amicus brief," Gerhardstein said.
"They volunteered information that goes beyond any federal interest. It's startling to say that challengers can bring information to [the official] poll watchers. That presumes they will bring in outside information. If you are a poll watcher, how are you going to evaluate that information on the spot?" Gerhardstein wondered.
Gerhardstein's lawsuit emphasizes that under Ohio law, a voter can be disqualified at a polling place.
Last week, Dlott held two days of hearings. On Friday, David Maume, a sociologist at the University of Cincinnati, testified that demographic data demonstrated that a disproportionate number of Republican challengers would be placed in precincts that were predominantly African American.
Maume told the judge that his analysis found that 77% of black voters in Hamilton County, where Cincinnati is the largest city, could face a Republican challenger on election day, while only 25% of white voters could encounter a challenger.
Maume said there was "a clear correlation between a voting population that is black and the placement of Republican challengers."
Republican Party officials countered, submitting affidavits stating that the places where they planned to deploy challengers were not determined by race. Rather, they would place challengers at all precincts where then-Vice President Al Gore got 60% or more of the vote during the 2000 presidential election, said lawyer Michael Barrett, co-chairman of the Hamilton County Republican Party.
Dlott adjourned the hearing Friday night and asked the parties to submit additional briefs by Sunday morning and present additional testimony at a Sunday night hearing.
At the hearing, Drew Hicks, a Cincinnati lawyer who has volunteered to serve as a Republican challenger and who attended a training session Sunday, was questioned sharply by Gerhardstein. Hicks said volunteers had been directed to lodge challenges against voters who were on a list of people who had applied for absentee ballots.
Hicks said volunteers also had been instructed to inform officials at the polls if names of voters were on a list of dead people given to volunteers by Republican officials. Hicks conceded he did not know the genesis of the list or whether it was accurate.
Richard N. Coglianese, an assistant attorney general for Ohio, contended that the plaintiffs' case was "a lot of smoke and mirrors." He said there was a rational basis for Ohio's challenge statute -- attempting to prevent fraud. In his closing argument, he asserted that the plaintiffs had not proven that there had been any intentional act of discrimination.
Gerhardstein said the Ohio law would have adverse consequences for blacks and other voters because it made it too easy to call a voter's legitimacy into question without giving notice of a challenge or an adequate opportunity to preserve a fundamental right.
Sunday's hearing concluded shortly after 9 p.m. EST, and as the weary lawyers emerged from the courthouse they shared the sidewalk with a throng of enthusiastic Bush supporters, who had just heard the president speak at a rally a mile away at the Great American Ballpark, home of the Cincinnati Reds.