Judge Kavanaugh holds mainstream position on voting rights

Judge Kavanaugh holds mainstream position on voting rights
© Anna Moneymaker

The latest bizarre claim laid against Supreme Court nominee Brett Kavanaugh is that his confirmation would “spell the end of voting rights.” This ridiculous charge has been spun up from two of Kavanaugh’s writings: a 2012 opinion upholding South Carolina’s voter ID law and a brief he filed as a private attorney in a case challenging Hawaii’s practice of preventing residents from voting based on their ancestry.

In both cases, Kavanaugh’s views were — and are — quite mainstream. More importantly, they have been affirmed.

In South Carolina v. Holder, Kavanaugh (joined by two other judges) held that the state’s voter ID law was not discriminatory and did not violate the Voting Rights Act.


As noted in Kavanaugh’s ruling, any South Carolina resident could vote using a driver’s license, a passport, a military ID, or a photo voter registration card. The latter form of identification is available — free — at every DMV office and every county election office in the state.

Moreover, Kavanaugh noted, South Carolina made it even easier to vote by providing a “reasonable impediment” exception to its ID requirement. This allows those without proper identification to vote anyway. All they need do is sign a simple affidavit stating the reason they have not obtained a photo ID. Do that, and they can cast a ballot immediately, no questions asked.

In his opinion, Kavanaugh praised the Voting Rights Act, calling it one of “the most significant and effective pieces of legislation in American history.” He discussed how it had “dramatically improved the Nation, and brought America closer to fulfilling the promise of equality espoused in the Declaration of Independence and the Fourteenth and Fifteenth Amendments to the Constitution.” The South Carolina law did not violate the Voting Rights Act, he explained, because it did “not materially burden voters” and, consequently, would “not have a discriminatory retrogressive effect on minority groups.”

Kavanaugh’s commonsense ruling has proved right. Opponents of the law claimed it would “disenfranchise tens of thousands of minority voters,” but it never happened. The law has been in place since 2013 with no problems and no effect on turnout. No disenfranchisement. No voter “suppression.”

Oddly enough, none of Judge Kavanaugh’s critics has bothered to mention that, in a subsequent voter ID case, the Obama Justice Department agreed that an ID law with a “reasonable impediment” exception was not discriminatory. On Aug. 3, 2016, the parties in Veasy v. Abbott penned a “Joint Submission of Agreed Terms” in which they agreed that Texas could apply its photo ID law in the 2016 election as long as any resident who signed “a reasonable impediment declaration” would “be permitted to vote using a regular ballot.”

In fact, the Texas requirement was tougher than South Carolina’s. In addition to signing the reasonable impediment form, the Texas voter would also have to show “a valid voter registration certificate, a certified birth certificate, a current utility bill, a bank statement, a government check, a paycheck, or any other government document that display the voter’s name and an address.”

And whose name was at the top of the court filing agreeing to all of these terms? Vanita Gupta. Then the principal deputy assistant attorney general of the Justice Department’s Civil Rights Division, Gupta today is president and CEO of the Leadership Conference on Civil and Human Rights. On July 17, her group sent a letter to the Senate complaining about Kavanaugh’s “troubling” opinion in the South Carolina case. The hypocrisy is obvious.

The July 17 letter also faults Kavanaugh for coauthoring an amicus brief in Rice v Cayetano, which argued that Hawaii could not bar citizens whom it considered “non-native Hawaiians” from voting in particular elections. The state’s definition of a “Native Hawaiian” was a bloodline qualification—similar to the odious “one-drop” rule used in the 19th and early 20th centuries to prohibit anyone with a “drop” of African blood from political participation in some parts of the United States.

The U.S. Supreme Court sided with Kavanaugh. The law violated the Fifteenth Amendment by using ancestry as a proxy for race, and, the court noted, the “use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve.” This was a seven to two decision, with two of the court’s most liberal members — Stephen Breyer and David Souter — joining the majority.

Yet the Leadership Conference criticizes Kavanaugh for taking the same position that the Supreme Court said was correct. It also criticizes him for writing an op-ed faulting the Clinton Justice Department for siding with Hawaii.

In the op-ed, Kavanaugh argued that while the “politically correct situation” in Hawaii was “to support the state’s system of racial separatism…, the Justice Department and its Solicitor General are supposed to put law and principle above politics and expediency.”

The Leadership Conference blasts this statement as “cynical and partisan.” It isn’t. Rather, Kavanaugh’s op-ed quite correctly maintains that the Justice Department should administer justice in an unbiased, nonpartisan manner.

Being against any kind of racial or ancestry discrimination in voting is the correct constitutional and moral principle. Vanita Gupta and the Leadership Conference apparently disagree with that principle.

Kavanaugh’s compelling decision in the South Carolina case and his principled position in the Hawaii case are all the more reason why he should be confirmed to the Supreme Court.

Hans von Spakovsky is a senior legal fellow at The Heritage Foundation.