Challenge to voters legal

Department of Justice says Ohio law allowing challengers at polls OK; judges to decide merits

By Stephen Dyer

AkronBeacon Journal   31 October 2004

The U.S. Department of Justice has decided that the Ohio law that allows people to challenge voters at the polling places Tuesday does not violate a voter's civil rights and is therefore constitutional.

Assistant U.S. Attorney R. Alexander Acosta filed a document in the Cincinnati court of U.S. District Court Judge Susan Dlott a Clinton appointee that says the Justice Department believes the challenger law in Ohio is constitutional.

It is the first time a federal official has picked sides in the dispute over the voter challenger law.

Acosta, who works for Republican U.S. Attorney General John Ashcroft, said the Ohio law doesn't violate voter rights because the federal Help America Vote Act of 2002 allows those folks to file provisional ballots anyway, even if their right to vote is successfully challenged.

``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.''

Democrats in Hamilton and Summit counties have challenged the law in federal courts in both Cincinnati and Akron, saying it's a remnant of Jim Crow segregation.

That law, passed in 1886, allows for challengers picked by political parties to question a voter's qualifications at polling places. A group of four precinct workers then consider whether the voter should be allowed to vote. If a majority of the four two Democrats and two Republicans say the voter is ineligible, the individual can't vote.

The essence of the Democrats' suit is that the law doesn't provide voters who are successfully challenged the opportunity to appeal before the election is over.

In other words, that person would not be able to vote. That, the lawsuit contends, is a violation of the First and 14th Amendments to the U.S. Constitution.

However, the state and now the federal government contend that voters are protected by the federal law, which allows for provisional ballots to be cast by folks whose qualifications are successfully challenged.

As for the Democrats' Jim Crow allegations about the law, the federal government, through the Ashcroft Justice Department, doesn't believe that argument holds water.

``Nothing in the Voting Rights Act facially condemns challenge statutes,'' Acosta wrote. ``These qualifications (that are challenged) are not tied to race.''

U.S. District Court Judge John Adams, a President George W. Bush appointee to the Northern District of Ohio, has said he will decide the Summit County case by or before Monday.

Dlott, who sits on the Southern District of the Ohio bench, hasn't filed any indication about when her decision would be rendered.