President Bush's margin of victory in Ohio may have spared the country the anguish of postelection lawsuits, but unaddressed claims of minority voter intimidation cast a shadow over this election just as rumors of Florida voter disenfranchisement did in 2000. Even if the results are undisputed, what is at issue is the integrity of the process.
The most publicized accusations came out of Ohio on the eve of the election.
Voicing concerns about voter fraud, the Republican Party sought to place 3,500 in polling places to challenge individual voter eligibility. According to state Democrats, Republicans planned to dispatch the challengers primarily to precincts with predominantly minority voters. Representing a pair of black voters, civil rights attorneys charged that the tactic was aimed at intimidating voters and brought suit to stop the practice. Two separate federal district court judges, one a Republican appointee and one appointed by a Democrat, agreed with the civil rights attorneys. According to both courts, in weighing the interest of preventing fraud against that of preventing voter intimidation, the balanced tipped in favor of voting rights.
In a predawn Election Day ruling over one judges' dissent, the Sixth Circuit Appeals Court overruled both decisions, deferring to Ohio's right to control its election process through state laws.
This preelection battle must not be read without the benefit of a bit of history about race and political parties in this country. In 1870, aided by the newly adopted 15th Amendment to the Constitution and the protection of the Republican Party, seven Southern states elected African-Americans to the House and Senate. In 1876, when the Republican Party removed its protection, widespread voter intimidation aimed at the newly freed slaves predominated. No African-American was elected to Congress until well into the 20th century.
Blacks remained loyal to the party of Lincoln until the New Deal era when they left in large numbers to become Democrats. Voter suppression, often violent, followed them, despite court suits to end disenfranchisement. Hispanic and language-minority voters suffered similar experiences. Suppression of minority voting was so prevalent that it became a chief platform in the struggle for civil rights. In response to that struggle, Congress enacted the Voting Rights Act of 1965 to address the problem.
President Johnson's signature on this legislation further secured the African-American vote for Democrats as Southern whites were leaving the party.
Despite some efforts by President Reagan's administration to attract more blacks, recent analysis suggests that both Democrats and Republican take African-American votes for granted. Democrats count on getting the bulk of the black vote and Republicans count on the proportionately higher white voter turnout to offset that advantage.
Following the 2000 claims of minority voter intimidation, attention again was focused on minority participation. By registering record numbers of new voters in urban, largely minority and poor communities, Democrats hoped to tip the balance of the minority vote back in their favor.
Republicans chose the path of increasing rural voting but also, it appears, to engage in what one Michigan official called "suppression" of the urban vote.
Fortunately, Ohio Republicans backed off from a plan to use poll challengers. But the choice to litigate in federal court for the right to use untrained personnel to go after individuals, rather than those who were registering them, lends support to the conclusion that the goal was intimidation and not fraud prevention.
Given President Bush's decisive victory, the larger lessons of this episode may be lost. Somewhere between claims of voter fraud and voter suppression exists the reality of the continued saliency of race in American politics. In this lies an opportunity for President Bush.
In 2007 when the Voting Rights Act comes up for review, his support for renewing the legislation should be clear. In the meantime, he should examine the Justice Department's enforcement of the statute and enhance it as needed.
Importantly, the public should not brush aside Democratic charges of minority voter intimidation as divisive identity politics or more politics as usual. Though Democrats and Republicans may still approach the vote of identifiable racial, class, gender, and now religious groups differently, such tactics are only acceptable if they enhance voter participation.
The very idea of voter suppression ought to be repugnant to any of us who value democracy.
Anita F. Hill is professor of law, social policy, and women's studies at Heller Graduate School at Brandeis University.
© 2004 Boston Globe