WASHINGTON — One of President Donald Trump’s nominees to a federal judgeship, Josh Divine, argued in a college opinion piece that people should be required to take literacy tests in order to vote — despite such tests being outlawed by the Voting Rights Act of 1965 because they were routinely used to keep Black people from voting.
“People who aren’t informed about issues or platforms — especially when it is so easy to become informed these days — have no business voting, which is why I propose state-administered literacy tests,” Divine wrote in October 2010 in The Mirror, a publication of the University of Northern Colorado. At the time, he was a junior at the university.
“In the Civil Rights Act, literacy tests were banned because they were used as a form of discrimination in that they were only administered to certain groups of people,” he said, “but literacy tests themselves are not a bad thing.”
Here’s a copy of Divine’s column:
Literacy tests in elections have a long and ugly history in the U.S. They were used from the late 1800s to the mid-1960s to prevent voting by immigrants and lower-income people, who were considered not educated enough to vote. In particular, in the 1960s, Southern states forced Black residents to explain complicated constitutional provisions in order to vote. The landmark Voting Rights Act ultimately banned literacy tests, along with poll taxes, and the result was a surge in registered Black voters.
The intent behind literacy tests was never to ensure that people became more informed in elections; they were a series of trick questions designed to keep non-white people from voting and having political power. Voting clerks, who were always white, could typically decide at will who passed or failed these tests. White people usually didn’t have to take literacy tests, because their voting rights were tied to their grandfathers’ rights from before the Civil War.
Divine also wrote in the column that he’s glad the United States isn’t “a true democracy,” which is usually understood to mean direct democracy, in which voters weigh in directly on policies rather than voting to appoint representatives who then vote to represent their constituents.
“I am very thankful we do not live in a true democracy, for if that were the case, America would not just be dying, its gravestone would already have weathered away,” he said.
It’s not clear whether Divine, who is now in his mid-30s, still thinks it would be a good idea to let states bring back literacy tests as a requirement for voting.
The White House did not return a HuffPost request for comment.
Divine is Trump’s pick for a lifetime federal judgeship on the U.S. District Court for the Eastern and Western Districts of Missouri. (It’s unusual, but one judgeship serves both courts.)
He is currently the solicitor general of Missouri and director of special litigation in the state attorney general’s office. He previously clerked for conservative Supreme Court Justice Clarence Thomas and served as chief counsel to Sen. Josh Hawley (R-Mo.).
Divine will benefit not just from Hawley’s enthusiastic support for his nomination but also from the lawmaker’s seat on the Senate Judiciary Committee, which hears from and approves judicial nominees before they advance to the full Senate for confirmation.
Trump has so far nominated a handful of people to lifetime federal judgeships in his second term, but none has had a hearing yet.
Some progressive judicial advocacy groups are already accusing Divine of being unfit to be a federal judge.
“Josh Divine’s op-ed advocating for literacy tests at the polls and arguing against the idea of democracy itself is one of the most disturbing writings we’ve ever seen in a judicial nominee’s record,” Jake Faleschini, the justice program director at Alliance for Justice, said in a statement.
“It should be unquestionable that a voter suppression tool rooted in the racism of the Jim Crow south has no place in our democracy,” said Faleschini. “He may have written some of them in college, but college wasn’t very long ago for Divine. He’s a radically young nominee to be a lifetime judge and doesn’t have even close to the minimal legal experience expected of federal judges.”