Brett Kavanaugh Threatens Americans’ Fundamental Right to Vote

Supreme Court nominee Judge Brett Kavanaugh poses for photographs in front of a painting of President Ronald Reagan, July 17, 2018.

This week marked the 53rd anniversary of the Voting Rights Act (VRA). In the years since the VRA’s enactment, however, its protections have not gone unchallenged. In a 2013 decision in Shelby v. Holder, a conservative majority on the U.S. Supreme Court gutted Section 5 of the VRA, a provision that prevented certain jurisdictions from unilaterally manipulating their voting policies and procedures. This ruling allowed legislators to enact discriminatory laws that make voting more difficult for both people of color and low-income Americans. With the retirement of Supreme Court Justice Anthony Kennedy this past July, it is essential that the Senate demand a fair, independent nominee who will defend the fundamental rights of Americans.

Brett M. Kavanaugh is not that nominee. Throughout his career, he has demonstrated a willingness to turn a blind eye to voter suppression and racial discrimination. If Kavanaugh is confirmed, Americans will almost certainly face further erosion of their voting rights.

Kavanaugh’s record shows a willingness to diminish the voices of marginalized groups

As counsel of record for Kirkland and Ellis in 1999, Kavanaugh defended efforts to strip away the rights of Native Hawaiians in choosing the state official responsible for protecting the rights and culture of Hawaii’s indigenous peoples. Kavanaugh argued that giving this choice to Native Hawaiians, instead of all Hawaiian voters, constituted racial separatism rather than an effort to support a community that suffered historic injustices at the hands of the U.S. government. This demonstrates not only his ignorance of the systems that perpetuate inequality but also his willingness to diminish the voices of marginalized groups for political gain. In the wake of the case, Kavanaugh criticized the Clinton administration in The Wall Street Journal for its support of voting rights for Native Hawaiians. After the election of President George W. Bush, Kavanaugh was hired as an associate by the White House counsel, Alberto Gonzalez. Later, he was nominated to serve on the U.S. Court of Appeals for District of Columbia Circuit.

Serving as a judge in 2012, Kavanaugh approved a strict South Carolina voter ID law, which went into effect that same year. In the majority opinion, he wrote that the law was not discriminatory, despite evidence from the U.S. Department of Justice that it would disenfranchise tens of thousands of voters of color. He also wrote that the law was not enacted for a discriminatory purpose, minimizing the fact that the bill’s author, state Rep. Alan Clemmons (R-SC), responded enthusiastically to a racially charged email from a constituent. That email stated that if African Americans were offered money to get IDs, it would “be like a swarm of bees going after a watermelon.” Noticeably absent from Kavanaugh’s opinion was any acknowledgement of the importance of Section 5 of the VRA. In fact, the concurring judges in the case felt compelled to write a separate opinion underscoring the “vital function” of Section 5. Kavanaugh’s actions in this case suggest that he may dispute the enduring need for Section 5—and, perhaps, the VRA as a whole.

And Kavanaugh’s record extends well-beyond his time as a federal judge. Kavanaugh previously served as President George W. Bush’s staff secretary. His job was “to give recommendations and advice” to the president. During his tenure, the Bush administration based hiring decisions at the U.S. Department of Justice Civil Rights Division on ideological views; reduced enforcement of Section 5; and questioned the need to renew the VRA altogether. Now, Kavanaugh’s allies in the Senate are working to shield his records from his time as staff secretary from public view. Sen. Chuck Grassley (R-IA) has only requested that the National Archives produce records from Kavanaugh’s time as associate counsel and senior associate counsel in the George W. Bush White House, not his time as staff secretary. Although the National Archives recently announced that it will not be able to produce this limited number of Kavanaugh’s records until late October, his allies are recklessly pushing for confirmation hearings. Efforts to hide his advisory role in an administration that undermined voting rights only compound concerns about his views on this critical issue.

Conclusion

The Voting Rights Act of 1965 was enacted to address the violent and systemic disenfranchisement that plagued the United States for centuries. Upon its passage, the VRA explicitly prohibited discriminatory voting policies and procedures, along with containing robust oversight and enforcement mechanisms for bad actors. And its effects were swift and significant. In Mississippi, black voter registration increased from 7 percent in 1964 to 67 percent in 1969. Despite the VRA’s continued importance, however, Kavanaugh’s record suggests that he questions its utility; is skeptical of voter suppression; and dismisses the lingering effects of past discrimination.

Confirming Kavanaugh would cement an anti-voting majority on the Supreme Court for a generation. Since the disastrous decision in Shelby v. Holder, lawmakers have enacted strict voter ID laws, scaled back early voting, and shuttered polling places. Each of these policies makes voting more difficult for American citizens—especially citizens of color. Kavanaugh’s confirmation would open the door to further state legislative action to suppress voter turnout. As senators reflect on the legacy of the Voting Rights Act, they must work to ensure that the Supreme Court protects the most fundamental right of all—voting.

Connor Maxwell is a research associate for the Race and Ethnicity Policy team at the Center for American Progress.