Brett Kavanaugh’s Aversion to the Equal Protection Clause is Troubling

Shutterstock (Rena Schild)

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We’ve come a long way as a country in expanding voting access to more than just rich, white, male landowners. Since its passage, we’ve consistently relied on the 14th Amendment to bring us closer to an electorate truly representative of our population. But we’ve got a long way to go, and with an administration that has proven itself to be in favor of limiting access to the ballot box and a court that in recent years has viewed the 14th Amendment with growing skepticism, the fight over the next Supreme Court Justice could have serious implications for voting rights for decades to come.

Brett Kavanaugh, a judge on the DC District Court of Appeals, is Trump’s second nominee in as many years. His opinions on the 14th Amendment and Equal Protection Clause could mean the difference between a robust electorate and even more disenfranchisement.

The Equal Protection Clause, found in Section One of the 14th Amendment, reads that the states cannot make or enforce laws that “abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; or deny to any person within its jurisdiction the equal protection of the laws.” Throughout history, this clause has been used to protect voters against discrimination via poll taxes, literacy tests, and grandfather clauses. But in recent years, the Court’s interpretations of this clause has become looser, allowing certain types of disenfranchisement.

In Richardson v. Ramirez (1974), for example, the Court ruled that Section Two of the 14th Amendment allows for felony disenfranchisement because the denial of the right to vote for “participation in rebellion, or other crime” will not result in reduced congressional representation, which the section is chiefly concerned with. Because removing citizens from the electorate without jeopardizing a state’s apportionment in Congress is allowed, the Court found that disenfranchisement in general must be legal and not in violation of the Equal Protection Clause.

Lately, however, there have been studies showing how prison gerrymandering (the result of counting prisoners as part of the districts they are imprisoned in, regardless of whether they can or cannot vote) has been skewing apportionment in favor of rural areas, making this issue everything but shut and closed. If confirmed, Brett Kavanaugh could be the deciding vote in clarifying just how far the Equal Protection Clause extends in regards to prison gerrymandering or other forms of electoral discrimination. It would be nice to think that he might stand up for disenfranchised populations, but his previous record shows little respect for the 14th Amendment.

In 2011, Kavanaugh ruled in favor of voter I.D. laws the Obama Administration claimed were in violation of the Voting Rights Act. In Mr. Kavanaugh’s opinion, he stated: “Many states, particularly in the wake of the voting system problems exposed during the 2000 elections, have enacted stronger voter ID laws, among various other recent changes to voting laws.”Rather than addressing voting system problems, voter ID laws have simply removed millions of citizens from the electorate without improving the integrity of our elections. The icing on top of the cake? Voter ID laws have been proven to disproportionately hinder minorities from voting. I’m not a lawyer, but this seems absolutely counter to the Equal Protection Clause.

Disenfranchisement, prison gerrymandering, and voter ID laws will be just a few of the civil rights issues the Supreme Court will have to rule on in the coming years. The future of our democracy rests in these decisions. It’s clear we need a Supreme Court Justice committed to enforcing the Equal Protection Clause fairly, and evenly. Brett Kavanaugh’s record suggests he isn’t that person.

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