Challenging Jim Crow in Cincinnati

Southern Exposure

In the last days before Election Day, Republican officials in the border state of Ohio finalized plans to deploy hundreds of election observers to challenge voters in Democratic-leaning precincts. The Democratic Party readied its own observers to make sure the Republican observers wouldn’t disenfranchise eligible voters.

And African Americans in the Buckeye State, mindful of a history in which blacks as a minority voting bloc have been the target of vote suppression campaigns in close races, braced for intimidation and harassment at the polls.

Blacks had good reason to fear Republican efforts at vote suppression. The week before Election Day, the state Republican Party announced it had a list of 35,000 registered Democrats suspected of being ineligible to vote, many of them black. The Republicans created the list by mailing cards to newly-registered voters and counting the pieces of mail returned because of a wrong address.

Republicans had publicized a plan to deploy hundreds of challengers to polling places in predominantly black precincts in Cincinnati, according to a lawsuit filed on Oct. 27 by veteran Cincinnati civil rights activists Marian and Donald Spencer. A map of precincts where the GOP announced it would have challengers in the state capital of Columbus published three days before the election by The Columbus Dispatch showed a discriminatory pattern. The precincts with the second and third highest number of challenged voters are 66 percent and 76 percent black, respectively. (Ohio Republicans have been reluctant to discuss their efforts, and numerous calls requesting comment for this story to party officials, a spokesman and a lawyer were not returned.)

Then there is Ohio’s so-called “challenger” law, a relic of the Jim Crow era, originally passed in the 19th century to guard the ballot box against whites who might have traces of African ancestry. Ohio Revised Code 3505.20, in its current form, allows any eligible voter to challenge another voter’s qualifications without presenting any evidence of wrongdoing.

Once the challenge has been made, the presiding election official is obliged to interrogate the would-be voter under oath with a litany of questions related to residency, citizenship and recent travel. The “challenger” law allows for the ballot to be denied to any voter whom a majority of poll workers determine is ineligible for any reason. By law, the poll workers’ decision is final and the person trying to vote has no right of appeal.

A flurry of lawsuits ensued in Ohio over whether the Republican plans to challenge black voters could go forward. A federal judge in Akron granted a temporary restraining order on Oct. 31 to stop the Republicans from placing vote challengers in polling places on Election Day, and another federal judge in Cincinnati also ruled against the use of challengers. But around midnight on Election Eve, the 6th U.S. Circuit Court of Appeals in Cincinnati overturned both decisions, allowing the Republican challenger plans to go forward the next day.

Then, when the polls opened on Election Day, a curious thing happened. African-Americans in Cincinnati and other parts of the state defied a steady downpour of cold rain to get to the polls, like most other groups voting in higher numbers than any election in recent memory. And while some Republican observers sat quietly in polling places, few challenges were made to black voters. The Republican plan to suppress the black vote seemed to fizzle.

“We felt disappointed that the injunction was not upheld, but what we learned is that very few challengers went to the polls,” said Donald Spencer, who, along with his wife, had sued Ohio Secretary of State J. Kenneth Blackwell to stop the vote challenger plan. “The ones that did were very quiet and asked very few questions.

The Spencers’ lawyer, Alphonse Gerhardstein reported on Election Day: “There seems to have been an informal stand-down by the Republicans. There have been no reports of intimidation by challengers. Very few of the Republicans have brought in the challenger lists. My clients are getting inundated with telephone calls of gratitude and support. Black talk radio is all over it. Turnout is amazing.”

The only explanation for the GOP’s decision to back off from the challenger plan came from a CNN interview with Ohio’s Republican governor, Bob Taft, on Election Day. “My understanding is that the challengers, at least the Republican challengers, will only be witnessing,” he said. “They will not be directly asking the election officials to challenge voters, but they will be witnessing the process and then reporting any concerns thereafter to election officials.”

Spencer said the lawsuit was a good preemptive move even though it has so far not been successful in the courts.

“We are certain that if we had not filed the suit, the Republicans might have been able to intimidate and cause a lack of representation in the African American community,” he said. “We think the big turnout we had in the election may have been caused by the publicity this suit brought.”

The Spencers, a couple in their 80s who have been instrumental in efforts over the past half century to desegregate restaurants, theaters and public transportation in Cincinnati, certainly attracted some attention with their lawsuit. Spencer v. Blackwell moved U.S. Assistant Attorney General R. Alexander Acosta to draft a letter in support of Ohio’s challenger law, and an appeal of the Court of Appeals decision by the Spencers’ lawyer was received in the dead of the night before Election Day by a Supreme Court justice.

“African American voters will face an imposing array of ‘challengers’ deployed to their precincts on Election Day,” the lawsuit states. “African American voters will be intimidated; racial tension will rise and African American voters will be blocked from exercising their right to vote on Election Day.”

The Justice Department took note, and Acosta drafted a letter two days later to Judge Susan J. Dlott in defense of Secretary of State Blackwell, a black Republican thought to have ambitions to succeed Taft as governor of Ohio.

Acosta said Dlott needn’t worry about black Ohioans being disenfranchised on Election Day because if they were successfully challenged, they could still vote by provisional ballot, which would be counted in the aftermath of a close election if they could be verified later. Underscoring the focus of George W. Bush’s Justice Department on deterring fraud, Acosta added: “Restricting the ability of citizens to make challenges when they have such information would undermine the ability of election officials to enforce their own state laws that govern the eligibility of voters.”

But Dlott, who was appointed to the federal bench by President Clinton, saw the combination of aggressive Republican poll monitors and an archaic state challenger law as a potential recipe for disaster, and ignored Acosta’s advice.

“The evidence before the Court shows that in Tuesday’s election, the polling places will be crowded with a bewildering array of participants–people attempting to vote, challengers (Republican, Democrat, and issue proponents and opponents), and precinct judges,” she wrote in her decision. “[With] the questionable enforceability of the State’s and the County’s policies regarding good faith challenges and ejection of disruptive challengers from the polls, there exists an enormous risk of chaos, delay, intimidation, and pandemonium inside the polls and in the lines out the door.”

The Court of Appeals, of course, didn’t see it that way. Judge John M. Rogers, a Bush appointee, writing for the majority in a 2-1 decision, concluded the public interest in allowing all voters to cast ballots freely was trumped by an overriding interest in upholding an Ohio law designed to safeguard the ballot box from fraud, and in allowing a smooth administration of voting laws by keeping the rules intact.

In a last-ditch attempt to halt the challenger plan, Gerhardstein filed for a stay with the U.S. Supreme Court in the early morning hours of Election Day.

A circuit opinion came back from Justice John Paul Stevens at 5:30 a.m. He declined to overturn the Court of Appeals decision, but his opinion betrayed sympathy for the Spencers and other black voters in Cincinnati.

“Although the hour is late and time is short, I have reviewed the District Court opinions and the opinions of the Circuit Judges,” he wrote. “That reasonable judges can disagree about the issues is clear enough. The allegations of abuse made by the plaintiffs are undoubtedly serious–the threat of voter intimidation is not new to our electoral system–but on record before me it is impossible to determine with any certainty the ultimate validity of the plaintiffs’ claims.”

The scenario of intimidation and pandemonium predicted by the Spencers and Judge Dlott didn’t materialize on Election Day, but Gerhardstein believes Ohio’s “challenger” law, if left intact, will leave the door open for widespread disenfranchisement sooner or later. Spencer v. Blackwell is still in the federal courts, and Gerhardstein hopes that with the pressure of Election 2004 off, the lawsuit will lead to the revision of the Civil War-era statute.

“I’m a civil rights lawyer, and I haven’t seen a statute this open to manipulation before,” he said. “[The statute] basically says a challenger who’s working in cahoots with an election judge can throw a voter off the rolls at any time. The earliest version of this statute was written when black people were not allowed to vote, and they wanted to interrogate white people to see if they had any black blood. In 1867, the courts threw out the ancestry questions, but the rest of the law was left on the books.”

It’s easy to see how the barrage of questions a challenged voter can face under Ohio Revised Code 3505.20 could discourage someone who is not an expert on voting rights law.

A person suspected of not being a citizen of the United States is asked to answer the following questions: ‘Are you a citizen of the United States? Are you a native or naturalized citizen?’ and ‘Where were you born?’ Once these questions are answered, the voter must produce a certificate of naturalization or state under oath that the documentation is lost or destroyed.

The questions listed for voters suspected of not living in the state or county for at least 30 days before the election–making them ineligible to vote–recall the humiliating anti-vagrancy laws historically used to keep poor blacks entwined in the criminal justice system. The questions might be especially intimidating for students, who attend college in another county or out of state, or for people who spend months at a time working at jobs away from home.

Imagine being interrogated with the following eight questions:

* “Have you resided in this state for thirty days immediately preceding this election? If so, where have you resided? Name two persons who know your place of residence.”

* “Have you been absent from this state within the thirty days immediately preceding this election? If yes, then [answer] the following questions:”

* “Have you continuously resided outside this state for a period of four years or more?”

* “Did you, while absent, look upon and regard this state as your home?”

* “Did you, while absent, vote in any other state?”

* “Do you now reside in this county?”

* “Do you now reside in this precinct?” and

* “When you came into this precinct, did you come for a temporary purpose merely or for the purpose of making it your home?”

“Our aim will be to make a permanent change in how challenging is done, so we can prevent anything that is meant to prevent people from voting as they normally would,” Spencer said. “We think that especially where the challengers were to go to African-American precincts while next door to that there are white precincts where they didn’t have observers–that was an indication that they were being discriminatory.”

The Spencers are not new to bold fights.

Marian Spencer is responsible for desegregating Cincinnati’s Coney Island amusement park, according to Cincinnati Historical Society documents. In 1952, one of the Spencers’ sons heard a radio announcement inviting children to come meet a local television personality at the park. Spencer called and asked if the invitation applied to all children and was assured that it did. But when she told the park representative, “We are Negroes,” she was told blacks were not welcome. Marian Spencer sued and won the case.

“My wife and I have been guardians of civil rights for all these years.” Donald Spencer said. “I’ve never missed an opportunity to vote since 1936. My wife has never missed an opportunity to vote since 1941. We must do everything we can to ensure that there is not discrimination in elections.”

JORDAN GREEN is an associate editor of Southern Exposure magazine and a frequent contributor to CounterPunch. This story originally appeared in Facing South, the online newsletter of Southern Exposure and the Institute for Southern Studies. Subscriptions are available for $21/year at

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