Justice Dept. letter backs poll watchers
Sunday, October 31, 2004
Cleveland Plain Dealer
Civil rights lawyers for the Bush administration's Justice Department have notified a federal judge that they see no conflict with Republican plans to post thousands of partisan challengers in Ohio polling places on Election Day.
The Justice Department's letter to U.S. District Judge Susan Dlott appears designed to undercut Democrats and their allies in civil rights groups.
Dlott is presiding over a closely watched pre-election lawsuit that claims GOP plans to station challengers in the polls violate the U.S. Constitution and the 1965 Voting Rights Act because it targets black neighborhoods in Hamilton County.
Republicans plan to put about 3,600 challengers in the polls across the state; Democrats plan slightly more than 2,000.
Hearings on the lawsuit whose outcome could affect the presidential race are scheduled to resume tonight at the U.S. Courthouse in Cincinnati. A decision is expected before polls open Tuesday.
Dlott is considering whether to bar challengers, also known as poll watchers, on grounds they are little more than a partisan army for intimidating newly registered voters in black neighborhoods across the state.
Al Gerhardstein, the lawyer representing two civil rights activists who want the poll watchers banned, said Saturday that the Bush administration may have breached legal rules by contacting the judge by letter.
"It is totally unusual, it is unprecedented for the Justice Department to offer its opinions on the merits of a case like that," Gerhardstein said. "This is the civil rights division saying it is OK for voters to be ambushed when they reach for a ballot. That's how the letter reads to me."
The Justice Department's letter was faxed to Dlott in Cincinnati on Friday and made public Saturday. She could not be reached for comment Saturday.
Copies were sent to Gerhardstein and Ohio Attorney General Jim Petro, whose office is defending the state law that allows poll watchers.
While expressing the civil rights division's views, the letter did not ask the judge to let the Bush administration formally intervene in the case.
Instead, Assistant Attorney General R. Alexander Acosta wrote to the judge to advise her that "nothing in the Voting Rights Act facially condemns challenge statutes."
The Justice Department said poll watchers can aid election officials in eliminating fraud by spotting and weeding out people who should not have their ballots counted.
"Restricting the ability of citizens to make challenges when they have such information would undermine the ability of election officials to enforce their own state laws that govern the eligibility for voting," the letter said.
The government's civil rights lawyers also assured Dlott that no Ohioans will be blocked from casting a ballot Tuesday, even if they are challenged when they show up to vote.
The Justice Department said all voters will be eligible to receive a provisional ballot "even if they are unable to answer specific questions posed by election judges."
Provisional ballots, unlike regular ballots, are set aside and tallied later. However, the votes are counted only if the voter is determined to have met Ohio's requirements for residency in the precinct, for age and U.S. citizenship.
Democrats were outraged by the letter. The chief lawyer for the Kerry campaign in Ohio said the government seemed to be trying to influence the judge without presenting any evidence in the case.
"We have seen the letter. We are considering what to do," said Daniel Hoffheimer, who is based in Cincinnati. "It is highly unusual for anybody who is not a party to a lawsuit to contact the court directly without filing the appropriate procedural documents."
Mark Weaver, legal counsel for the Ohio Republican Party in Columbus, said the Justice Department weighed in to help the judge, not to influence her improperly.
"This is an important question," Weaver said. "This is the Justice Department pointing out that federal law and Ohio law require that Judge Dlott permit observers in the polling place. The Justice Department traditionally weighs in on important constitutional questions, and they did that here."
On Friday, Ohio Secretary of State Ken Blackwell split with his party by saying neither Republican nor Democratic challengers should be allowed in polling places. Blackwell said poll workers hired and paid by local boards of elections come from each party and should be able to protect against voter fraud.
Blackwell said the challengers could create confusion.
Republicans say their plan is colorblind. Weaver said Saturday that the poll watchers are being trained to be as unobtrusive as possible.
Republican officials say precincts where challengers will be present were ed because those locations voted heavily Democrat when George Bush ran against Al Gore in 2000.
They said the effort to monitor poll sites many in minority neighborhoods of Cleveland, Columbus and Cincinnati is designed to check questionable voter registrations and weed out fraud.
Marian Spencer, an 84-year-old civil rights veteran who was the first black woman elected to the Cincinnati city council, said she went to court against the GOP plan because it smacked of Old South efforts to scare blacks away from the polls.
"I'm wondering about the new voter who, for the first time, is exercising his franchise or her franchise to vote and wonders why they are being singled out," she said.