Brett Kavanaugh is on side of Supreme Court on voting laws

Greg Nash

Civil rights activists have been working themselves into a froth over the White House nomination of Brett Kavanaugh to the Supreme Court. The attacks are many and, on top of it all, they are stoking racial fear by claiming he is the second coming of Jim Crow. They point to his federal decision upholding the South Carolina voter identification law.

Ari Berman leads the chorus, writing a column headlined, “Does Brett Kavanaugh spell the end of voting rights?” An article out of Think Progress forecasts the end of “competitive elections” if Kavanaugh is confirmed to the high court. This is laughable. In fact, what his record reveals on voter identification is careful consideration of the right to vote with the concurrent need to secure fair and honest elections.

{mosads}Opponents justify their despair by pointing to a single legal opinion by Kavanaugh in 2012 in which he and two other judges unanimously agreed that the South Carolina 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 thousands of South Carolina voters.

That prediction, however, was not supported by the facts. As Kavanaugh wrote in his opinion, South Carolina permits anyone to vote using a number of readily available forms of identification, including a driver license, a DMV photo identification card, a passport, a federal military identification card, and a newly created voter registration card, which could be obtained for free at all county election 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. The South Carolina voter law as designed, Kavanaugh prudently wrote, the law “will not materially burden voters.”

Experience proved him 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 Moore in the 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. The quarrel is really with most American voters.

According to a Gallup poll conducted in 2016, four out of five Americans support photo identification requirements for voting. A more recent Rasmussen survey of likely voters 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 4 percent of respondents, coming in behind “out of town” and just one point ahead of “forgot to vote.” The most common answer to the question was “didn’t like candidates or campaign issues.”

Voter identification is simply not the insurmountable barrier some want you to believe it is. That is not just the opinion of Kavanaugh. It is the opinion of his potential new employer. What his detractors do not say is that his record contains praise for our 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 our founding documents.

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

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

Tags Brett Kavanaugh Constitution Election Roy Moore Supreme Court Voting

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