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A hate supreme (continued)


DURING THE SAME years Rehnquist fought to keep racial discrimination legal, he was fighting another battle — at the polls. From 1958 to 1964, Arizona Republicans ran an operation they called "Eagle Eye," in which they moved from polling place to polling place in Phoenix’s minority neighborhoods, challenging voters in an attempt to disqualify some and slow down the line enough to keep others from voting. Under Arizona election law, every political party was allowed to post one watcher at each polling place, who could challenge a voter’s legitimacy. According to numerous witnesses, many under oath, Rehnquist headed "Eagle Eye" and personally harassed voters.

"Rehnquist pretty much wrote the manual on how to discourage blacks and Hispanics at the polls," says Harry Craig, a Phoenix attorney who was a poll watcher for the Democrats, speaking to the Phoenix.

The operation actually began a month before each election: Republicans mailed letters to all the registered voters in South Phoenix — the heavily minority part of town — using the addresses on the official registration rolls. Any letter returned by the post office gave them a basis to challenge the voter’s legitimacy. Craig recalls a Republican poll watcher with a large box of returned envelopes that he used for challenges. Manuel Pena Jr., another Democratic poll watcher, told the Phoenix he witnessed Rehnquist using this technique. "He had a whole stack of envelopes, and was trying to match them to people as they came in to vote," Pena says.

But Rehnquist was even more aggressive than the operation called for. "He was challenging everybody, and that wasn’t legal," Pena says. The challenge Rehnquist preferred was more universal and far more demeaning: making them prove they could read.

At the time, literacy — in English — was a requirement for voting in Arizona. (Such requirements were banned nationwide by the Civil Rights Act in 1964.) But literacy had to be proven at the time of registration, and was not open to challenge at the polls. Rehnquist, however, carried a copy of the US Constitution, and forced people in line to read a section and explain it, according to Pena.

Brooks says he, too, saw Rehnquist using the literacy-challenge tactic. "He was personally doing it," he says. "I remember him specifically picking on an older man, a Presbyterian elder, who worked on the railroads. I threatened to call the sheriff."

Cloves Campbell Sr., a state representative at the time who had several clashes with Rehnquist, had similar recollections when he spoke to the Phoenix in March, three months before he died of a heart attack. "Bob Tate, a county clerk, was at the polls, and Rehnquist was challenging," Campbell said. "Tate told him to stop it and sit down. Finally Tate threw him out and busted him upside the head."

There are plenty of witnesses to these stories, because Rehnquist made appearances at many polling places, in several elections. Sydney Smith, a Phoenix psychologist, told Congress that he saw Rehnquist challenge the literacy of two African-Americans in line to vote. James Brosnahan, an assistant US attorney in Phoenix in 1962, testified that he and an FBI agent heard complaints from black and Hispanic voters about Rehnquist — the only Republican challenger at the polling place at the time — challenging their literacy. (Brosnahan declined a Phoenix request for an interview.)

During his 1971 confirmation hearing, Rehnquist testified that although he might have occasionally helped resolve disputes at polling places, "in none of these years did I personally engage in challenging the qualifications of any voters."

REHNQUIST’S "EAGLE EYE" activities can be easily viewed as partisan electoral shenanigans, rather than racism — in the same way that many of the Democrats trying to register minorities in those years were probably more interested in their votes than in their rights. But many say Rehnquist has always struck them as more ideological than partisan. In fact, that was a big reason why Dean suggested him for the Supreme Court. "He was a conservative who knew why he was a conservative," says Dean. "He had thought through his positions."

Fresh off two rejected nominees, Nixon didn’t want to nominate an overt racist, Dean wrote in his 2001 book, The Rehnquist Choice. But Nixon also ruled out anyone who might turn out to be "soft" on civil rights over time. Rehnquist, an intellectual ideologue, would be more consistent in the long run, Dean thought.

In private, Rehnquist did not come across as a racist, says Dean — not in the way many certainly did at the time (including, as we know from tape recordings, the president himself). "Not at all," Dean says emphatically. "Had I known that Bill Rehnquist’s philosophy is as exclusive of women’s rights, black rights, minority rights as it turned out to be, I would never have suggested him." It is one of his great regrets, he says.

Dean could not have known then that Rehnquist would go on to spend more than three decades on the Supreme Court, including 18 years as chief justice, applying his beliefs to every area of American life. When Rehnquist does retire, and historians and constitutional scholars debate his legacy, the ugly truth of those beliefs should not be left out of the picture.

David S. Bernstein can be reached at dbernstein[a]phx.com

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Issue Date: November 26 - December 2, 2004
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