What's At Stake in the Fight to Save SCOTUS and Voting Rights in America - Black Enterprise
Black Enterprise Magazine July/August 2018 Issue

As Supreme Court nominee Brett Kavanaugh continues to make rounds of congressional courtesy calls seeking support, civil rights groups have been turning up the heat to push the U.S. Senate to either “press pause on the nomination” or reject President Trump’s pick outright. To achieve that end, representatives from such organizations—The Leadership Conference on Civil and Human Rights, National Urban League, NAACP Legal Defense Fund, National Council of Asian Pacific Americans and Mexican American Legal Defense and Educational Fund (MALDEF)—are rallying their multicultural constituencies to speak out. Under the banner, “#WhatsAtStake for Voting Rights in SCOTUS Fight,” this collective held a press briefing Monday to strongly communicate how Kavanaugh’s addition to the conservative-leaning high court would further undermine the franchise of people of color.

With midterms less than five months away and the 2020 presidential election in the wings, the civil rights leaders asserted that the stakes couldn’t be higher. “We consider his nomination an immediate threat to our community’s right to vote that is already under daring attacks,” says Suzanne Bergeron, senior director of civil rights and workforce policy for NUL, one of several organizations urging voters to call their senators in an effort to halt the confirmation process. “Having Brett Kavanaugh on the Supreme Court to rule on voter rights cases could leave African-American voters even more vulnerable to voter intimidation and added suppressive tactics that negatively impact black voter turnout.”

The rapidly changing voter demographics have added intensity to this battle. “Finally, there is no denying that the U.S. electorate is diversifying racially and ethnically at warp speed.. Last year was the country’s most racially and ethnically diverse electorate ever, with nearly one in three eligible voters on election day being a person of color,” says Janai Nelson, associate director-counsel of the NAACP Legal Defense Fund. “And the 2018 and 2020 elections promise to continue this trend with voters of colors comprising 44% of millennial voters, which is the largest generation of eligible voters.”

Vanita Gupta, president and CEO of the Leadership Conference, which organized the call, argued that the Senate “must demand the release and full review of Kavanaugh’s records.” Declaring that “if confirmed, Kavanaugh would undermine voting rights enforcement in our nation,” she cited one of the decisions he made in his role as a judge of the D.C. Court of Appeals. In 2011, he wrote an opinion upholding South Carolina’s voter ID law that the Department of Justice had blocked, deeming the measure as being discriminatory to minorities in violation of the Voting Rights Act of 1965.

“He refused to include language put forward by the other judges on the panel that acknowledged the critical role of the Voting Rights Act in preventing racial discrimination in voting,” she said. “It is telling and troubling that Kavanaugh refused to recognize the importance of the historic Voting Rights Act. Kavanaugh backed the spurious claim that the voter ID law would prevent voter fraud. But given that South Carolina could not produce any evidence of fraud, it’s clear the law’s real purpose was to suppress voting, plain and simple. What we know so far about Kavanaugh’s record is that he has been a partisan, politician operative. So we need to know more.”

Gupta, along with the group, also raised concerns about the nominee based on the track record of Trump’s previous Supreme Court appointment Justice Neil Gorsuch, who served as “the fifth and deciding vote in two devastating anti-voting rights decisions. One decision allowed voter purging in Ohio and the other upheld racial gerrymandering in Texas.”

Even before the Trump administration came to power, the Supreme Court tilted right in such cases. With the 5-4 decision in Shelby v. Holder in 2013, the court struck down a key provision of the Voting Rights Act that stripped the law’s formula to require all or jurisdictions of states with a history of electoral discrimination—many of them located in the South—to get “pre-cleared” by the federal government before making any adjustments to voting laws.

“It is quite clear that we are at a critical point in time in our history of defense of civil rights. For the last five years, because of Congress’ failure to act following the decision in Shelby County by the Supreme Court…we are evaluating proposals to change voting rights laws in important regions across the country,” Thomas Saenz, president and general counsel of MALDEF, said. “Without pre-clearance, we are left with federal court as the last resort to ensure that our laws reflect the constitutional rights of every individual who is eligible to vote.”

Nelson agrees: “Voting rights protect every other right we enjoy and it is essential that the next Supreme Court justice has a clear commitment to protecting access to the ballot box.”

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