Brett Kavanaugh threatens voting rights in America

By Conor Kelly, policy fellow, Let America Vote

As we face down another vacancy on the U.S. Supreme Court, one thing is abundantly clear: President Trump’s nomination of Brett Kavanaugh only further imperils the status of voting rights across the country.

The current Court, with Justice Kennedy representing the key fifth vote of a conservative majority, had already begun a steady march against voting rights. Kennedy, after all, cast the key vote to gut the core of the Voting Rights Act in Shelby County v. Holder. And just this past term, he voted to uphold an Ohio voter purge program that disenfranchises voters for merely failing to vote.

With a Justice Kavanaugh, we can only expect further moves in this anti-democratic direction. The fate of voting rights would be all but sealed.

Brett Kavanaugh

To get a sense of his track record on voting rights, and to see why his potential presence on the bench frightens so many, look no further than his opinion in South Carolina v. United States. In that 2012 case, the D.C. Circuit voted to uphold a South Carolina voter ID law that the Obama Department of Justice found would likely disenfranchise more than 80,000 minority registered voters who did not have the ID required by the law.

The forms of ID required under the statute, the Court admitted, were more likely to be owned by white voters. But Kavanaugh didn’t seem to think that fact was critical to the analysis.

Sidestepping a discussion of the racial disparity, Kavanaugh instead spent countless lines in his opinion discussing how South Carolina had a “legitimate” interest in enacting stringent regulations to combat voter fraud — despite no evidence from the state demonstrating actual instances of in-person voter fraud itself. Indeed, Kavanaugh wrote that the state’s lack of evidence of voter fraud to justify its voter ID law didn’t matter.

Such an approach reveals a shocking disregard for the facts on the ground, and conveys an unnerving tendency to revert to a rigid ideology precisely when issues become ambiguous.

To put it as Judge Kavanaugh did: “[The state’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 [the state].”

That’s like saying a pitcher has a legitimate fear that a batter might hit a home run off him when the batter hasn’t made contact in his life. It’s a brand of judging that doesn’t square with reality or common experience.

This isn’t just outside-the-mainstream ideology, it’s the sign of a fickle jurist, the sign of a potential Justice who would go out of his way to protect abstract and often unjustified state interests at the expense of eligible voters’ right to cast a ballot.

It’s the type of thinking that leads one to turn a blind eye to the likely disenfranchisement of 80,000 registered minority voters and tells them to take a seat while the state obsesses over how to combat (by Kavanaugh’s own admission) zero reported cases of in-person voter fraud.

In his years on the D.C. Circuit, Kavanaugh routinely has been  selective in his interpretation of laws aiming to protect voters:

  • In the case discussed above, Kavanaugh rejected the notion that South Carolina’s law had a discriminatory purpose despite compelling evidence to the contrary. Contained in the case record was the transcript of an email exchange between a state legislator and a constituent, in which the constituent stated that if African Americans were offered state money to get voter IDs, “it would be like a swarm of bees going after a watermelon.” The state legislator’s reply? “Amen.” Kavanaugh acknowledged the constituent’s remark as a concerning display of “racial insensitivity” but absolved the state government of any blame whatsoever.
  • In the same case, Kavanaugh downplayed the burden on voters forced to sign declarations and cast provisional ballots as a result of the state’s law. In so doing, he skirted evidence from the Department of Justice which showed that South Carolina’s provisional procedure could be “applied differently from county to county, and possibly from polling place to polling place, and thus risks exacerbating rather than mitigating the retrogressive effect of the new requirements on minority voters.” Instead, Kavanaugh simply accepted the state’s straightforward contention that “more IDs means more voting rights,” with no questions asked.

Judge Kavanaugh must answer for why he seems so ready to accept at face value state interests in preventing “voter fraud” when those states fail to produce any real evidence that such fraud exists.

Modern voting rights cases require heightened sensitivity to the disparate impact of voting laws on people of color. Judge Kavanaugh’s record displays not only a lack of sufficient tact on the subject, but also an apparently selective disregard for clear evidence of discrimination.