Brett Kavanaugh is on side of Supreme Court on voting laws

Brett Kavanaugh is on side of Supreme Court on voting laws
© Greg Nash

Civil rights activists have worked themselves into a froth over the nomination of Brett Kavanaugh to the Supreme Court. The attacks are many, though they are stoking racial fear by claiming he is the second coming of Jim Crow. They point to his decision upholding South Carolina’s voter identification law.

Ari Berman leads the Chicken Little chorus, writing, “does Brett Kavanaugh spell the end of voting rights?” A July article out of the Center for American Progress casually forecasts the end of “competitive elections” if Kavanaugh is confirmed to the high court.

This is laughable. In fact, what Kavanaugh’s record reveals on voter identification is careful consideration of the right to vote with the concurrent need to secure fair and honest elections.


Opponents justify their despair by pointing to a single legal opinion authored by Judge Kavanaugh in 2012 in which he and two others unanimously agreed South Carolina’s voter identification requirement is compatible with the Voting Rights Act. The state required voter identification in some form for 30 years. When changes were made in 2011, the Obama administration blocked the law from taking effect, alleging it would disenfranchise tens of thousands of voters in the Palmetto State. That prediction, however, was not supported by the facts.

As Judge Kavanaugh wrote in his opinion, South Carolina permits anyone to vote using a number of readily available forms of identification, including a driver’s license, a DMV photo identification card, a passport, a federal military identification, and a newly created photo voter registration card, which could be obtained for free at all county elections offices.

For those residents who could not obtain one of these forms of photo identification, the law made an exception. Any voter with a “reasonable impediment” to obtaining photo identification could cast a ballot simply by signing an affidavit that lists the reason why he or she could not obtain a photo identification. “As designed,” Kavanaugh prudently wrote, the law “will not materially burden voters.”

Experience proved Judge Kavanaugh correct, in South Carolina and elsewhere. In Alabama, for example, where voter identification is required for voting, the New York Times observed that “extraordinary turnout among black voters” helped propel Democrat Doug Jones to victory over Roy MooreRoy Stewart MooreGAO investigating after employee featured in Project Veritas video Roy Moore dismisses Kavanaugh accusation: 'So obvious' when claims come 'just days before a very important event' DOJ looking into 'concerning' behavior by employee in Project Veritas video MORE in Alabama’s 2017 Senate runoff contest. The paper further notes “registered black voters appeared to cast ballots at a higher rate than white ones.”

What makes the doomsday critics of Kavanaugh especially suspect is that he resisted the request to narrow the scope of the Voting Rights Act. South Carolina argued that the standards of the Voting Rights Act should be narrowed to avoid any constitutional problems. Kavanaugh specifically rejected the request.

Berman’s quarrel is really with the majority of American voters. According to a Gallup poll conducted in August 2016, four in five Americans support photo identification requirements for voting. A more recent survey of likely voters by Rasmussen found support for voter identification to be 70 percent. A Pew Research poll that asked registered voters why they did not vote in 2016, “registration problems” was cited as the reason by just four percent of respondents, coming in behind “out of town” and just 1 percentage point ahead of “forgot to vote.” The most common answer: “Didn’t like candidates or campaign issues.”

Voter identification is simply not the insurmountable barrier some want you to believe it is. That’s not just Kavanaugh’s opinion. It’s the opinion of his potential new employer.

What Kavanaugh’s detractors don’t say is that his record contains praise for this nation’s voting rights laws. In the very opinion his opponents use to attack him, Kavanaugh calls the Voting Rights Act one of the “most significant and effective pieces of legislation in American history,” one that has brought the nation closer to fulfilling “the promise of equality” found in America’s founding documents.

Judge Kavanaugh’s rational opinion on the South Carolina matter shows he will approach voting rights with a reasoned commitment to precedent and the rule of law, something we should demand from every member of the judiciary.

Noel Johnson serves as litigation counsel for the Public Interest Legal Foundation, a nonprofit law firm focused on protecting election integrity.