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.”