Kavanaugh’s Record Doesn’t Bode Well for Voting Rights

He voted to uphold a law that threatened to disenfranchise tens of thousands of minority voters.

President Donald Trump shakes hands with Judge Brett Kavanaugh, his Supreme Court nominee, in the East Room of the White House on Monday.Alex Brandon/AP

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

Donald Trump’s new Supreme Court nominee, Brett Kavanaugh, could determine how the court rules on cases that shape the future of voting rights in the United States. And if his track record is any indication, many Americans could be disenfranchised as a result.

As a judge on the DC Circuit Court of Appeals, Kavanaugh voted in 2012 to uphold a South Carolina voter ID law that the Obama administration said would disenfranchise tens of thousands of minority citizens. The Justice Department blocked the law, which required government-issued photo identification to vote, in late 2011 for violating the Voting Rights Act.

“The absolute number of minority citizens whose exercise of the franchise could be adversely affected by the proposed requirements runs into the tens of thousands,” wrote Tom Perez, who was then assistant attorney general for civil rights and now leads the Democratic National Committee. The Justice Department found that more than 80,000 minority registered voters in South Carolina did not have DMV-issued identification, with African Americans 20 percent more likely than whites to lack such ID.

But when South Carolina then sought approval for its law from a three-judge court panel in Washington, DC, Kavanaugh wrote the opinion upholding it. He found that the controversial law “does not have a discriminatory retrogressive effect” and “was not enacted for a discriminatory purpose.” He pointed to a Supreme Court decision upholding Indiana’s voter ID law in 2008. “The Supreme Court’s affirmation of the general legitimacy of the purpose behind a voter ID law is consistent with the fact that many States—particularly in the wake of the voting system problems exposed during the 2000 elections—have enacted stronger voter ID laws, among various other recent changes to voting laws.”

From 2011 to 2012, 19 states controlled by Republicans passed laws restricting access to the ballot. These included voter ID laws, cutbacks to early voting, and restrictions on voter registration that disproportionately targeted Democratic constituencies, like voters of color.

South Carolina didn’t present any cases of voter fraud to justify its law, but Kavanaugh wrote that such laws were constitutional despite an absence of evidence of fraud. “We conclude that South Carolina’s goals of preventing voter fraud and increasing electoral confidence are legitimate; those interests cannot be deemed pretextual merely because of an absence of recorded incidents of in-person voter fraud in South Carolina,” he wrote.

Kavanaugh’s opinion suggests that when it comes to voting rights, he would reliably side with the Supreme Court’s conservative majority, which in 2013 gutted the Voting Rights Act, ruling that states with a long history of voting discrimination no longer needed federal government approval for election changes. This year, the court’s conservatives also upheld voter purging in Ohio and racial gerrymandering in Texas.

Kavanaugh downplayed the racially charged origins of South Carolina’s voter ID law and its impact on voters of color. Members of the South Carolina Legislative Black Caucus walked out of the Legislature when the bill was first considered. After the law passed, Ed Koziol, a Republican supporter of the law, wrote an email to the bill’s author, Rep. Alan Clemmons of Myrtle Beach, saying that if African Americans were offered a $100 award for obtaining voter ID, “you would see how fast they got voter ID cards with their picture. It would be like a swarm of bees going after a watermelon.”

“Amen, Ed,” Clemmons responded. “Thank you for your support of voter ID.”

Though Kavanaugh said he was “troubled” by that racist email, he wrote that “one legislator’s failure to immediately denounce those views in his responsive email, as he later testified he should have done—do not speak for the two Houses of the South Carolina Legislature, or the South Carolina Governor.”

Voter disenfranchisement could get worse if Kavanaugh is confirmed to the court. Kavanuagh would replace Justice Anthony Kennedy, the court’s frequent swing justice. Chief Justice John Roberts would likely become the new swing justice, and he has tried to weaken the Voting Rights Act since his days as a young lawyer in Ronald Reagan’s Justice Department. With Kavanaugh on the court, the five-member conservative majority will likely uphold new voting restrictions passed by Republican states and could kill the remaining sections of the Voting Rights Act. The days when minority voters could look to the nation’s highest court for protection seem to be over.  

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate