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Edward B. Foley
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Profiling at the Polls in Ohio: Presence of Partisan Challengers in Swing States a Threat to Democracy

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October 31, 2004

Daniel P. TokajiDaniel P. Tokaji
Associate Director, Election Law @ Moritz
Assistant Professor of Law
Moritz College of Law


This op-ed, co-authored by Spencer Overton, originally appeared in the Dayton Daily News (Saturday, Oct. 30.); reprinted with permission.

Ohio Republicans recently announced plans to place 3,600 poll watchers in largely Democratic precincts to challenge the eligibility of voters on Election Day.

Officials in other swing states, including Arizona, Florida, and Wisconsin, anticipate similar Republican deployments. But the GOP should abandon its targeted voter challenges because the tactics threaten American democracy for all of us.

While the Republicans claim their challenges are necessary to prevent voter fraud, they follow a disturbing trend of targeting racial minorities at the polling place.

In August 2004, Phuong Tan Huynh campaigned to become the first Asian-American councilman in a majority-white Alabama town, and Huynh's political opponents challenged the voting qualifications of Asian-American voters as they entered the polling place (Huynh eventually won a council seat).

In anticipation of a close gubernatorial race, Republicans in Jefferson County, Kentucky, announced plans to place partisan challengers in predominantly black precincts during the November 2003 election.

In Ohio, all of the precincts in about a dozen counties that contain 91 percent of the state's black population - including urban areas like Cleveland, Cincinnati, Dayton, Toledo, and Akron - might have Republican challengers.

The selective use of voter challenges violates the principle of political equality in various ways. Legitimate voters in targeted precincts are more likely to be denied the right to vote than those in unchallenged precincts. In the pandemonium of Election Day, countless eligible voters will be unable to prove their eligibility and will be denied the opportunity to cast a regular ballot.

Repeated challenges will tax already overextended poll workers, create long lines, and reduce turnout in targeted areas. Further, abuses by just a handful of challengers from one party or the other could seriously distort the results of the election.

There is also the strong possibility of inequality from county to county, or even across precincts within a county.

Ohio's nebulous standard that challengers show "good cause" presents a problem similar to Florida's "clear intent of the voter" standard, struck down by the U.S. Supreme Court four years ago in Bush v. Gore. For example, a poll judge in Allen County might require that a challenged voter show a driver's license to prove residency, while a poll judge in Cuyahoga County might simply require that a challenged voter respond "yes" when asked whether she is a resident.

The new federal law requiring that voters be allowed to cast a provisional ballot does not fix the problem. There is great uncertainty throughout the nation over how many of the provisional ballots cast will actually be counted. In March 2004, only 416 of 5,914 provisional ballots cast in Chicago were counted - about 7 percent.

Claims that targeted challenges are necessary to maintain "voter integrity" are superficially appealing, but throughout history, politicians have advanced seemingly legitimate rationales to justify unfair and unequal election practices.

White politicians once argued that poll taxes were necessary to cover the costs of elections and that literacy tests were needed to ensure an intelligent pool of voters. But our nation rejected both poll taxes and literacy tests because the devices enabled white politicians to maintain power by systematically disenfranchising blacks.

Voter fraud is a real problem, and we must deal with it. But fairness requires that the law be enforced uniformly by impartial officials, rather than exploited selectively by partisan challengers. We should balance the values of access and integrity to prevent overzealous enforcement that reduces participation by legitimate voters.

The fundamental right to vote is too important to be entrusted to the whims of political parties determined to win at any cost.

Spencer Overton is a law professor at the George Washington University, and is writing a book on voter suppression entitled The Ghost of Jim Crow: The Unfinished Struggle for Voting Rights in America. Daniel Tokaji is an assistant professor of law and associate director of the Election Law Project at Ohio State University's Moritz College of Law.