WASHINGTON — Four days before the 2004 election, the Justice Department’s civil rights chief sent an unusual letter to a federal judge in Ohio who was weighing whether to let Republicans challenge the credentials of 23,000 mostly African-American voters.
The case was triggered by allegations that Republicans had sent a mass mailing to mostly Democratic-leaning minorities and used undeliverable letters to compile a list of voters potentially vulnerable to eligibility challenges.
In his letter to U.S. District Judge Susan Dlott of Cincinnati, Assistant Attorney General Alex Acosta argued that it would "undermine" the enforcement of state and federal election laws if citizens could not challenge voters’ credentials.
Former Justice Department civil rights officials and election watchdog groups charge that his letter sided with Republicans engaging in an illegal, racially motivated tactic known as "vote-caging" in a state that would be pivotal in delivering President Bush a second term in the White House.
Acosta’s letter is among a host of allegedly partisan Justice Department voting rights positions that could draw scrutiny on Capitol Hill in the coming weeks as congressional Democrats expand investigations sparked by the firing of at least nine U.S. attorneys.
Acosta, now the U.S. attorney in Miami, said in a statement that his letter was aimed at advising the court that a new Ohio law allowing challenges was "permissible," so long as no challenge was based on race. He said it also was intended to make clear that anyone whose eligibility was questioned had a right to file a provisional ballot.
Justice Department spokeswoman Cynthia Magnuson said that the Civil Rights Division "does not coordinate actions with any political party" and that any such suggestion would be "entirely unfounded."
But Robert Kengle, former deputy chief of the department’s Voting Rights Section who served under Acosta, said the letter amounted to "cheerleading for the Republican defendants."
"It was doubly outrageous," he said, "because the allegation in the litigation was that these were overwhelmingly African-American voters that were on the challenge list."
Joseph Rich, a former chief of the department's Voting Rights Section, called the Ohio scheme "vote caging."
Acosta declined during the weekend to say whether Hans von Spakovsky, the division’s voting counsel at the time, had any role in writing the letter. Von Spakovsky has been besieged with allegations of partisanship as he tries to win Senate confirmation to a full term on the Federal Election Commission.
Federal courts and Ohio Secretary of State Kenneth Blackwell ultimately barred Republicans from posing the challenges in a frenzied legal battle that ran up to election eve.
The House Judiciary Committee plans soon to begin examining whether the Civil Rights Division took positions in support of a Republican agenda to suppress the votes of poor and elderly minorities who tend to vote for Democrats, said an aide to the panel who requested anonymity because the new line of inquiry has yet to be announced officially. It’s not yet clear whether the examination will include vote caging.
The tactic entails sending mail stamped "do not forward" to voters’ homes and requiring a return receipt. Voters who do not sign for the letters or postcards can then be challenged at the polls or in pre-election hearings on grounds such as whether they meet legal residency or age requirements.
J. Gerald Hebert, a head of the Voting Rights Section in the early 1990s and now executive director of the nonprofit Campaign Legal Center, says the tactic is unfair for multiple reasons: it is often racially motivated; voters may be out of town or refuse to sign return receipts on letters from the GOP, and addresses may be inaccurate.
Rich said that challenges of caged voters have been stopped when brought to light before an election. The question is, he said, whether caging and subsequent challenges have occurred "and somebody didn’t bring it to light."
The new Ohio law permitted challenges in 2004 but required political parties to list targeted voters in advance of the election. The Ohio Republican Party notified election authorities in the fall of 2004 that it planned to challenge more than 35,000 voters at the polls, a figure it later trimmed to 23,000.
Democrats sued in Cincinnati to block the challenges and before U.S. District Judge Dickinson Debevoise in Newark, N.J., who had issued a consent decree barring the tactic in 1982 after finding the GOP illegally targeted minority voters in the state’s gubernatorial race the previous year.
The Justice Department was not a party to either case. Nor did Judge Dlott solicit the federal government’s views. But Acosta weighed in anyway.
Challenges, he wrote, "help strike a balance between ballot access and ballot integrity."
Republicans’ use of caging has been a contentious issue ever since Debevoise’s ruling 26 years ago. In 1986, the judge found that Louisiana Republicans had violated the consent decree. In 1990, another consent decree was issued after the Republican Party of North Carolina and the re-election campaign of Republican Sen. Jesse Helms sent 125,000 postcards to mostly black voters to compile a list of voters to challenge.
Nor was Ohio the only scene of an alleged GOP caging scheme in 2004. Former Republican National Committee and White House operative Tim Griffin has been dogged by allegations that he tried to cage mostly African-American voters in Jacksonville, Fla. Rich said that scheme became public before the election and Republicans did not pursue challenges.
Last week, Democratic Sens. Edward Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island sought an internal Justice Department investigation into whether department officials knew about Griffin’s alleged caging before he was named interim U.S. attorney for Arkansas. Griffin, who has denied any impropriety, resigned that post earlier this month.