The essential battleground state of the 2004 presidential campaign was Ohio, and as the election approached, supporters of embattled President George W. Bush announced an exceptionally controversial scheme to station citizen “challengers” at polling places. As a Brennan Center for Justice report explained, “Only a few weeks before Election Day, the Ohio Republican Party announced its plan to deploy thousands of citizen challengers across the state, mostly in African-American voting precincts. The announcement led to multiple voting rights lawsuits and sparked a media firestorm.”
The firestorm ultimately led Ohio Republicans to abandon their initial plan. But, as the Brennan Center analysts noted, “the ensuing controversy shined a national spotlight on the disruptions that partisan and discriminatory challenge efforts can cause.”
It also shined a light on Alexander Acosta, President Trump’s latest nominee to serve as secretary of labor, and the first Latino to be tapped by the president as a cabinet pick. Acosta is an experienced government hand, who has a long history of working the conservative Republican side of the aisle. After finishing Harvard Law School, he clerked for future Supreme Court justice Samuel Alito, who was then serving as a judge on the United States Court of Appeals for the Third Circuit, and as a senior fellow with the right-leaning Ethics and Public Policy Center. Acosta served briefly as a Bush appointee to the National Labor Relations Board, and then was appointed by Bush as the assistant attorney general with responsibility for leading the US Department of Justice’s Civil Rights Division.
It was in that latter role that Acosta intervened in a pair of lawsuits brought by Ohio civil-rights activists who objected that the Ohio law that permitted the challenging of the right of voters to cast their ballots was unconstitutional.
So-called “challenge statutes” have long been a subject of controversy. A 2012 Demos study referred to “bullies at the ballot box” measures, arguing that “There is a real danger that voters will face overzealous volunteers who take the law into their own hands to target voters they deem suspect. But there is no place for bullies at the ballot box.” The Brennan Center has warned that “When challenges are used improperly, they can have the effect of intimidating voters or suppress voter participation.”
One lawsuit filed by Donald and Marian Spencer, a pair of veteran civil-rights activists from the Cincinnati area, argued that Ohio’s 1886 “challenge statute” was “a vestige of ‘Jim Crow’ laws and created the possibility of disenfranchising a voter without due process of law.”
Acosta cannot have been unfamiliar with these concerns. Yet the assistant attorney general dispatched what the Los Angeles Times referred to as “an unusual letter brief supporting the statute.” Acosta’s letter urged the judge to uphold the “challenge statute” in order to maintain “the balance between ballot access and ballot integrity.” “Challenge statutes, such as those at issue in Ohio, are part of this balance,” claimed Acosta. “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.”
The Acosta’s letter also argued that “nothing in the Voting Rights Act facially condemns challenge statutes” because “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 facial challenge… under the Act because these qualifications are not tied to race.”
In fact, as the LA Times noted, “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 percent 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.”
Alphonse Gerhardstein, the civil-rights lawyer who represented Donald and Marian Spencer, described the letter as “highly irregular” and noted that “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…. 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?”
In 2007, the former chief of the Voting Section of the Department of Justice’s Civil Rights Division, Joseph Rich, referred to the 2004 moves by the Ohio Republicans as a “vote caging” scheme. (The Brennan Center has described voter caging as “a notoriously unreliable means of calling the voter rolls into question [that] can lead to unwarranted purges or challenges of eligible citizens. When it is targeted at minority voters [as it often is, unfortunately], it is also illegal.”)
Robert Kengle, the deputy chief of the Voting Section, said he left his position because of the extreme politicization of the department during the time of Acosta’s leadership. Kengle said the controversial letter brief in the Ohio case amounted to “cheerleading for the Republican defendants.” “It was doubly outrageous because the allegation in the litigation was that these were overwhelmingly African-American voters that were on the challenge list,” he explained to the McClatchy Newspapers DC bureau, which reported in 2007 that “Former Justice Department civil rights officials and election watchdog groups charge that [Acosta’s] 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.”
McClatchy reported that “Acosta’s letter is among a host of allegedly partisan Justice Department voting rights positions.”
The issues raised by “challenge statutes” and “voter caging” remain a profound concern, and the subject of legal debates, as does Acosta’s tenure with the Department of Justice’s Civil Rights Division.
Minutes after Trump announced Acosta’s nomination to serve as Labor Secretary, Wade Henderson, the president and CEO of The Leadership Conference on Civil and Human Rights, said “it is incumbent upon the Senate to conduct a thorough review of Alexander Acosta’s record.”
Lawyers’ Committee for Civil Rights Under Law President and Executive Director Kristen Clarke said she was “astonished by the nomination of Alexander Acosta to serve as Secretary of the US Department of Labor.”
“Mr. Acosta led the Civil Rights Division at a time that was marked by stark politicization, and other improper hiring and personnel decisions that were fully laid to bare in a 2008 report issued by the Office of Inspector General (OIG),” said Clarke. “The OIG found that actions taken during Mr. Acosta’s tenure violated Justice Department policy and federal law. Political and ideological affiliations were used as a litmus test to evaluate job candidates and career attorneys, wreaking havoc on the work of the Division. This egregious conduct played out under Mr. Acosta’s watch and undermined the integrity of the Civil Rights Division. It is hard to believe that Mr. Acosta would now be nominated to lead a federal agency tasked with promoting lawful hiring practices and safe workplaces.”