CINCINNATI — As two federal judges in Ohio prepared to rule on lawsuits contending that the state's procedure for challenging an individual's right to vote is unconstitutional, the Justice Department weighed in with an unusual letter brief supporting the statute.

Assistant Atty. Gen. R. Alexander Acosta sent a brief during the weekend to U.S. District Judge Susan J. Dlott, who held a rare Sunday night hearing in one of the cases, a lawsuit filed late last week by Donald and Marian Spencer. The Spencers, an elderly African American couple, are longtime civil rights activists in Cincinnati.

The Spencers' lawsuit contends that the Ohio procedure, which was enacted in 1886 and permits individuals to challenge the legitimacy of a voter at the polling place, is a vestige of "Jim Crow" laws and creates the possibility of disenfranchising a voter without due process of law.

[...]

Acosta's letter urged the judge to heed the Help America Vote Act, or HAVA, which was passed in 2002 to help remedy some of the problems in the 2000 presidential election. In particular, the letter said HAVA permitted a voter whose "eligibility to vote is called into question" to cast a provisional ballot.

"We bring this provision to the court's attention because HAVA's provisional ballot requirement is relevant to the balance between ballot access and ballot integrity," Acosta wrote.

"Challenge statutes, such as those at issue in Ohio, are part of this balance," he added. "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."

Acosta's letter also stated that "nothing" in the Voting Rights Act barred challenge statutes. Consequently, Acosta concluded, "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 a challenge based on the language of the law alone, because those criteria are "not tied to race."

Alphonse A. Gerhardstein, a veteran civil rights lawyer who represents the plaintiffs in the Cincinnati case, said he thought "the letter was highly irregular."

"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," Gerhardstein said.

"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?" Gerhardstein wondered.

A federal judge issued an order about 1:30 a.m. today barring political party challengers from polling places throughout Ohio during Tuesday's election.

U.S. District Judge Susan Dlott found that the application of Ohio's statute allowing challengers at polling places is unconstitutional. She said the presence of challengers inexperienced in the electoral process questioning voters about their eligibility would impede voting.