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On voting rights, we have much more to lose with Brett Kavanaugh

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As we celebrated this week the 53rd anniversary of the Voting Rights Act, our democracy stands at a crossroads. When he signed the bill into law, President Lyndon Johnson stated: “[T]he vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.” But opening up democracy so that everyone can participate has been difficult. The struggle for inclusion requires constant vigilance.

The U.S. Supreme Court is central to whether African-Americans will ever truly achieve full political participation. Its rulings have defined the contours of bans against discrimination embedded in the Constitution and voting rights statutes, including the sacred Voting Rights Act. As the Senate considers the nomination of Judge Brett Kavanaugh to fill a pivotal seat on the high court, voting rights should rightfully be a topic at the center of the debate.    

{mosads}Five years ago, the Supreme Court issued its devastating ruling in Shelby County v. Holder. The opinion was authored by Chief Justice John Roberts, who signaled early in his career his deep antipathy towards voting rights but still was confirmed by a Senate vote of 78-22. By dismantling the requirement that those jurisdictions with a history of discrimination must clear any changes to voting laws or practices with the federal government, the court gutted the heart of the Voting Rights Act.


Since then, state legislatures and municipalities across the nation have enacted measures to restrict and suppress the vote. Indeed, the discrimination floodgates flew open as soon as the decision was announced. Our worst fears were realized. Dozens of states adopted photo ID laws, restrictions on registration, and reductions in early voting and polling places, to name a few of the changes.

Thankfully, some courts found these laws intentionally discriminatory, including the Fourth Circuit, which held that North Carolina’s law targeted “African-Americans with almost surgical precision.” But the damage has been done. A recent study showed that the very jurisdictions subject to preclearance under the Voting Rights Act — precisely because of their history of discrimination — are purging registered voters from their rolls more aggressively.    

As devastating as the Shelby County ruling was, we must remember that voting rights jurisprudence in the Supreme Court can get worse. This past term, President Trump’s first appointee to the court, Justice Neil Gorsuch, joined four justices to uphold the most heinous voter purge law in the nation, transforming voting rights into a “use it or lose it” proposition in Ohio. The court also upheld racially gerrymandered districts in Texas, with at least two justices, Gorsuch and Clarence Thomas, expressing the view that the Voting Rights Act does not cover any challenges to redistricting.

Looming large is the prospect that the Voting Rights Act’s remaining provisions could be declared unconstitutional, as Justice Thomas and the late Justice Antonin Scalia long hoped.      

If confirmed, Judge Kavanaugh could play an outsized role in determining the future of voting rights in the Supreme Court. To be sure, his predecessor, Justice Anthony Kennedy, was no friend of voting rights; he consistently sided with conservatives in this area. But Judge Kavanaugh likely would join with Justices Roberts, Thomas, Gorsuch and Samuel Alito to further restrict the franchise to the wealthy, the powerful and Republicans. His record contains deeply troubling signs that he is committed to doing precisely that.

On the D.C. circuit, Judge Kavanaugh upheld South Carolina’s photo ID law challenged under the Voting Rights Act. The Justice Department had rejected the law under Section 5 of the Act, which was still in force prior to the Shelby County ruling, because it would disenfranchise tens of thousands of voters of color. In writing the opinion, Judge Kavanaugh refused to endorse a statement by the other two judges that “one cannot doubt the vital function that Section 5 of the Voting Rights Act has played here.” He also credited the myth of voter fraud by allowing South Carolina to claim it as a motive for the law while not requiring the state to produce proof of it.

There is more evidence of Judge Kavanaugh’s dangerous views. He co-authored a brief with failed Supreme Court nominee Robert Bork arguing that Hawaii violated the Constitution by permitting only Native Americans to vote in elections for the Office of Hawaiian Affairs. In an op-ed, Kavanaugh called upon the court to “adhere to the fundamental constitutional principle most clearly articulated by Justice Antonin Scalia: In the eyes of government, we are just one race here. It is American.”

Almost 90 years ago, the NAACP helped to defeat President Herbert Hoover’s nominee to the Supreme Court, John Parker, who believed that African-Americans had no role in the political process. We engaged our chapters around the country and testified before the Senate against the nominee, who was narrowly defeated by a 39-41 vote.

Today, the threat to our political participation posed by Brett Kavanaugh’s nomination is just as grave and we must be just as engaged. This is a battle worth fighting and one we must win. Our democracy depends on it.     

Derrick Johnson is the president and CEO of the NAACP, America’s largest civil rights organization. Follow him on Twitter @DerrickNAACP.

Tags Brett Kavanaugh Conservatism in the United States Donald Trump Shelby County v. Holder Supreme Court of the United States Voting Rights Act

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