MICHEL MARTIN, HOST:
We're going to talk more about the implications of the Supreme Court's decision with Kareem Crayton. He is vice president of the Washington office of the Brennan Center for Justice. That's a think tank that advocates for expanding voter access. Mr. Crayton, good morning. Thanks for joining us.
KAREEM CRAYTON: Thank you for having me.
MARTIN: So the Supreme Court has now chipped away at the Voting Rights Act in multiple rulings since 2013. What, if any, protections remain in the law?
CRAYTON: Well, there are very few. I think this was essentially an interment without a funeral. This is a court that has, over a series of years, whittled things down to really the point at which we were, as Hansi just mentioned, to 1982, where you're basically left with intentional discrimination claims, which are based in the Constitution. But even, unfortunately, not even like 1982, the court has put in place many limits on what you can use in order to get to intent evidence.
There's now a legislative privilege that protects state legislators from discovery requests that weren't in place in 1982. And now we see from Justice Alito's decision this argument that you've got to, in order to get to intent, prove it's intent to racially discriminate, because the intent to pursue partisan ends is essentially shielded because the Supreme Court in 2019 said it can't adjudicate partisan gerrymandering claims.
MARTIN: What about examples of sort of techniques like allowing certain forms of ID, but not others, recognizing that certain forms of ID are preferred by some groups over others? Is that no longer allowed?
CRAYTON: So that's not really allowed in the way that it was after this case that basically told the plaintiffs that you have to be able to show that there isn't just a slight difference, as Alito, actually, who authored the opinion out of Arizona, said. It can't just be a slight difference. It has to be a statistically significant difference. And you have to explain away alternatives that explain the difference, according to the state. So the hurdles have even gotten higher as a result of all the different decisions that the court has adopted since, essentially, the mid-2010s.
MARTIN: How do you expect this decision to affect voters' experience?
CRAYTON: Well, what we know is that voters are going to be, partly due to, again, all of the court's decisions, they're going to be subject to a lot more redistricting. We've already seen that since July of last year. We're also going to see is that, unfortunately, voters aren't going to be able to find their way into court to challenge them all that easily. Actually, pending before the court is a question as to whether or not individual private plaintiffs can go and sue under whatever remains of Section 2. We'll see what the court tells us.
MARTIN: Well, if they can, who can? If individuals can't sue, who can sue?
CRAYTON: We may be left with the Department of Justice. And we know that there are issues that range from all types right now with this Department of Justice. So it may be that no suits get pursued if the Department of Justice says, well, as a policy matter, we don't see that as being an important way of enforcing civil rights laws.
MARTIN: Could these changes be felt as soon as this year's midterms?
CRAYTON: So we've heard already there are some states that are intending to go into the breach and redraw maps. I also think it's important to remember, much of Section 2's force has been at local levels, jurisdictions that sometimes aren't partisan. And those are places that also we don't know if the changes to Section 2 are going to be felt in the way the districts are drawn there. So not likely at the congressional level is the answer. At lower levels close to voters, it's possible that it could be actually, you know, happening at any time that people test how broadly Justice Alito's opinion will be applied in nonpartisan races.
MARTIN: And very briefly, he said that - Justice Alito said vast social change factored into his ruling. Do you buy that?
CRAYTON: Not at all. Justice Alito is clearly not a Southerner and not a social scientist. And I think if you ask either group, they'd beg to differ.
MARTIN: That's Kareem Crayton. He's with the Brennan Center for Justice. Mr. Crayton, thank you.
CRAYTON: Thank you so much.
(SOUNDBITE OF PETER SCHERER'S "THE FLIGHT") Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
