Intimidation nation.

The law, lawyers, and the court.
Nov. 2 2004 1:12 PM

Intimidation Nation

Who will watch the poll-watchers?

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It's commonplace, especially in the case of presidential elections involving millions of voters and decided by the arcane mechanisms of the Electoral College, for people to feel that their vote won't count. But no one should feel that her vote won't be counted. And unfortunately, that's exactly what a disturbingly large percentage of African-American voters do feel about this, one of the more fractious presidential elections in recent memory. The New York Times reports that nearly 80 percent of black voters believe states would make a deliberate effort to prevent them from voting. Tragically, an 11th-hour decision by 6th Circuit Court of Appeals allowing Republican party poll watchers to target predominantly black precincts will only fuel their disenchantment.

OK, it's true that some African-Americans are given to conspiracy theories fit for The X-Files: AIDS was a government plot to kill black men; the war on drugs was designed to trap poor young blacks; laws disenfranchising felons are part of a deliberate plot to dilute the political influence of African-American communities. Socially and politically vulnerable people perhaps naturally overestimate their own peril, and for African-Americans, nowhere is that sense of threat greater than in the context of their hard-won right to vote. In a Fox Mulder moment a few years ago, an e-mail hoax claimed that the possible expiration of the Voting Rights Act (up for renewal in 2007, it primarily regulates electoral reapportionment) meant that Congress could decide to deny blacks the formal right to cast ballots: "Did you know that our right to vote will expire in the year 2007?" the e-mail shrieked. "Does anyone realize that Blacks/African Americans are the only group of people who still require PERMISSION under the United States Constitution to vote?!"

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As a part-time participant in the ongoing "conversation about race" (and a full-time black person), I'm often asked why black people are so paranoid. Where do they get such ideas? This year, they get them from the Republican party—which plans to place thousands of poll "watchers" in the heavily African-American urban precincts of many battleground states today. These "watchers" intend to scrutinize potential voters and challenge those who may not be qualified to vote. If a watcher challenges a voter, state law typically requires the poll officials or "judges" to determine whether or not the voter is in fact qualified to cast a ballot.

This is political hardball at its ugliest. It also potentially interferes with the right to vote, which is why two federal judges in Ohio have barred the practice—a decision that was unfortunately overturned on appeal early this morning. It appears the damage will be done in this election. Even the most judicious poll-watcher will inevitably challenge many voters who are entitled to vote. And we can't expect judiciousness: The whole point of selectively deploying partisan poll-watchers is to be aggressive on the other side's turf. Poll "watchers" determined to root out fraud are unlikely to be distinguished by their refined manners or diplomacy ("Pardon me, sir, but surely you must admit that Mary Poppins is an odd name for a man.") Instead, partisan watchers are likely to cross-examine potential voters and pressure poll officials (predominantly soft-spoken retirees volunteering out of a sense of civic duty) to err on the side of exclusion in ambiguous cases. At least some harried polling officials will acquiesce.

Besieged by partisan hacks, polling places will be transformed from peaceful and orderly to contentious and tense. Queues—already expected in this tight election—will grow as officials stop to consider challenges motivated by partisan politics. Although voters standing in the queue when the polls close are entitled to cast a ballot, no doubt many will give up, irritated by needless delay and intimidated by an atmosphere of hostility.

One suspects that the Republicans who devised this grubby tactic will shed few tears over Democrats barred from voting by delay or intimidation. Indeed, a few have been surprisingly frank about their desire to suppress African-American votes. For instance, according to the Detroit Free Press, Michigan Republican John Pappageorge opined: "If we do not suppress the Detroit vote, we're going to have a hard time in this election cycle." If you think Pappageorge didn't realize that Detroit is over 80 percent African-American, I've got a surplus of blank butterfly ballots I'll sell you, real cheap.

Historically, the nation's most notorious episodes of voter intimidation were perpetrated by Democrats after Reconstruction, when poll taxes and literacy tests were discriminatorily applied to keep blacks in the South from exercising the franchise. But just as Republicans picked up the "Dixiecrat" voter in the 1980s, they now seem to have adopted the election tactics of the old South as well.

Republicans claim they are just trying to stop voter fraud, which they expect to be rampant due to aggressive Democratic "get out the vote" efforts. They are targeting heavily Democratic precincts—which also happen to be heavily black precincts—because that's where the Democrats targeted their voter registration drives and because—well, because they are Republicans, after all (the Democrats are free to police potential fraud in heavily Republican precincts). And there's nothing racially discriminatory about the use of partisan poll-watchers. The laws of many states—such as Ohio—explicitly allow for them and even register them according to party affiliation.

Southern Democrats could have defended the poll tax and literacy test in similar terms. There nothing necessarily racially discriminatory about a poll tax or literacy test, and there are good, race-neutral arguments for both. Administering all those polls is expensive, and what better way to defray the burden on the public fisc than to require the people using the costly service to help pay for it? And literacy tests simply ensure that people casting a ballot can read the voter information pamphlet. The historical injustices done through such "race neutral" practices have taught us that a practice or law that is neutral on its face can be discriminatory as applied. Just as Southern Democrats selectively challenged black voters with literacy tests while ignoring thousands of illiterate white voters, now Northern Republicans selectively target black precincts for voter challenges.

It's probably true that the Republicans are not targeting heavily black precincts because they're heavily black; they are targeting them because they're heavily Democratic. But let's not be naive: They are also targeting black precincts because they expect to find voters and polling officials who are relatively poor and socially powerless and hence easier to bully and intimidate. This may not be racism in its purest form—animus based on nothing other than race—but it's close enough to make decent people want to take a shower. Note to Karl Rove: If the GOP wants to shake its image as the home of modern racism, this is not the way to go about it.

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