SALON

Joe Conason

Friday, Oct 29, 2004 6:30 PM UTC

Supreme injustice

Across the country, the Republican Party continues to intimidate African-American and Latino voters -- an ugly legacy of Chief Justice William Rehnquist.

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The conservatives who now rule the Republican Party trace their political and ideological roots back 40 years to the Goldwater campaign, which they recall as a doomed but noble and prophetic crusade. As the radical right’s chosen heir seeks his second presidential term, events also remind us of their legacy’s most ugly aspect: the Republican Party’s continuing determination to intimidate and disenfranchise voters, especially African-Americans and Latinos.

The living symbol of that tradition is William Rehnquist, whose serious illness underlines the judicial stakes of this election. The chief justice of the U.S. Supreme Court once made his mark as a young Republican lawyer in Arizona by challenging black and Hispanic voters. Today that urge to suppress democratic participation is represented by Nathan Sproul, another Arizona Republican whose name has become synonymous this year with schemes to frustrate voter registration.

The tricks allegedly employed by Sproul and his ilk are modern and slick rather than brutal, but the impulse is precisely the same. And in cities and states across the country, the cruder racist techniques are being revived again. In Florida, as Bob Herbert reported in the New York Times last summer, state officials sent armed officers into certain Orlando neighborhoods to scare elderly black registrants. In Kentucky, Nevada, South Carolina, Pennsylvania and Ohio, Republicans have planned to challenge voters en masse in minority neighborhoods. That return to the methods of the bad old days is the Republican response to the upsurge in minority registration — and the enormous threat that Republican strategists perceive in those new voters. Last week, Republican pollster Tony Fabrizio summarized his findings in a report on the battleground states by noting that “minority turnout is a wildcard in this race and represents a huge upside for Senator Kerry and a considerable challenge for the President’s campaign.”

So despite all the blood and toil expended to expand American democracy over the past four decades, the right to vote and to be counted is still unfinished business for both sides. Barry Goldwater was soundly defeated, and he changed considerably before he died — but his campaign’s opposition to civil rights and voting rights persists like a chronic disease among those who have claimed his mantle. As Rutgers law professor Sherry Colb explains in this important FindLaw essay, “Targeting African American voters is as racist as it looks.”

When partisan hirelings show up at polling places next week to challenge the registrations of minority voters, they will be reenacting scenes from Phoenix in the early ’60s, where Rehnquist and other supporters of Goldwater sought to block voting by dark-skinned people suspected of being Democrats. The name of the game — “ballot security” — was the same then as now, as was the pretense of seeking to prevent “vote fraud.”

Testifying before the Senate against Rehnquist’s elevation to chief justice in 1986, former Assistant United States Attorney James Brosnahan described an earlier encounter with him, circa 1962. As a Justice Department lawyer, Brosnahan visited Phoenix polling places to investigate alleged civil rights violations:

“The complaints we received alleged in various forms that the Republican challengers were aggressively challenging many voters without having a basis for that challenge …

“Based on my interviews with others, polling officials, and my fellow assistant U.S. attorneys, it was my opinion in 1962 that the challenging effort was designed to reduce the number of black and Hispanic voters by confrontation and intimidation …

“When we arrived, the situation was tense. At that precinct I saw William Rehnquist, who was serving as the only Republican challenger. The FBI agent and I both showed our identifications to those concerned, including Mr. Rehnquist … The complaints did involve Mr. Rehnquist’s conduct. Our arrival and the showing of our identifications had a quieting effect on the situation and after interviewing several witnesses, we left. Criminal prosecution was declined as a matter of prosecutorial discretion.”

Under oath, Rehnquist denied Brosnahan’s charges, and based on conflicting testimony from other witnesses, the issue was left sufficiently murky for the Republican-dominated Senate to confirm him. But in his 2001 account of that nomination battle, “The Rehnquist Choice,” former Nixon White House counsel John W. Dean concluded that Rehnquist — who said he didn’t “remember” engaging in voter challenges — had almost certainly lied to the Senate.

America has changed since then, of course, but not necessarily in ways that flatter our image of ourselves. In 1971 and 1986, when those accusations emerged against Rehnquist, he took pains to deny that he had ever participated in challenges to black and Latino voters. Whether he was telling the complete truth or not may matter less today than the fact that he and his supporters realized such behavior was shameful and unacceptable. Today’s Republicans give lip service to equal rights, but seem confident that they can get away with the kind of conduct that Rehnquist tried to conceal.

When a Republican legislator in Michigan got caught talking about the need to “suppress the Detroit vote” earlier this year, he said he had been misunderstood, apologized, and then resigned from the state Bush-Cheney campaign. Yet the strategy that he articulated will be pursued in coming days across the country, more or less openly, from Indian reservations in the Dakotas to inner-city neighborhoods in Ohio, Florida and anywhere else the Republican victory might be endangered.

If George W. Bush believed his own rhetoric about “freedom on the march,” he would not permit these offenses to be committed in his name. If he believed what he says about “compassionate conservatism,” he would not fear the judgment of the people he claims to care about. If he believed in the God-given rights that he talks about so often, he would speak out to discourage those who seek to intimidate the weak and the poor from exercising their only power in this country.

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