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Kareem Crayton: Redistricting & the Problem with Politicization

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Kareem Crayton: Redistricting & the Problem with Politicization

Kareem Crayton is an attorney, law professor, and academic whose work explores the effects of state-sanctioned racial discrimination on campaigns, elections, and governance. He served as the Executive Director of the Southern Coalition for Social Justice, and is the founder and Managing Partner of Crimcard Consulting, which is now advising the Virginia Redistricting Commission.

You can learn more about Kareem and his work at kareemcratyon.com

You can also follow him on Twitter at @KareemCrayton

More about Kareem:

Kareem U. Crayton, J.D., Ph.D.

Founder, Crimcard Consulting Services

Kareem Crayton is a leading expert, scholar, and consultant whose multi-disciplinary work lies at the intersection of law, politics, and race. He is the only J.D./Ph.D. in the country whose primary work centers on the relationship between race and politics in representative bodies. With professional experience in universities and government at the state and federal levels, Kareem’s specialized background has made him a critical voice in the public discussion on redistricting, voting and elections. His commentary, insight and analysis have appeared both in highly-ranked academic publications along with major media outlets.

Kareem’s academic writing examines the effects of prolonged race discrimination in electoral systems and governance policy. His more than two dozen publications address topics that include redistricting, racially polarized voting behavior, and the interpretation of the Voting Rights Act. His seminal work extends to global institutions, including the challenge of developing new political systems and structures that respect identity and culture in multi-racial societies. Further, Kareem was the substantive architect behind The Redistricting Game, a first-of-its-kind online game to help educate the public and elected officials about the law and policy behind the redistricting process.

Kareem’s public service includes his role as Chief of Staff and Special Counsel to the Minority Leader in the Alabama House of Representatives to advise on redistricting after a key U.S. Supreme Court order struck the state’s legislative maps. Kareem has taught election law for more than fifteen years, serving on faculties including Vanderbilt, the University of Southern California, the University of North Carolina and the University of Alabama. And from 2017 until 2019, he led a social justice organization where he recruited and trained a legal team that argued the country’s two most recent partisan and racial gerrymandering cases before the U.S. Supreme Court (Abbott v. Perez and Rucho v. Common Cause).

For more than a decade, Kareem has managed Crimcard Consulting Services, a firm he established to assist elected officials, community groups, and other entities achieve greater equity in public policy. He regularly assembled interdisciplinary teams of experts to provide support (as advisor, amicus counsel, or expert) in redistricting and other election law projects in nearly a dozen states that include California, Pennsylvania, and North Carolina. In the 2010 cycle, this work included advising organizations that proposed maps presented to the California Citizens Redistricting Commission and counseling the North Carolina Democratic legislative delegation during redistricting and subsequent preclearance processes.

An Alabama native, Kareem is a manga cum laude graduate of Harvard College, and he received a Ph.D. in Political Science and J.D. from Stanford University. He later served as a judicial law clerk on the U.S. Court of Appeals for the D.C. Circuit and the Constitutional Court for the Republic of South Africa.

Ken Harbaugh:

Burn the Boats is proud to support VoteVets, the nation’s largest and most impactful progressive veterans organization. To learn more, or to join their mission, go to VoteVets.org.

Kareem Crayton:

This isn't just about destroying things and deconstructing things- We need to do that. We need to stop the foolishness that has informed the exclusion and marginalization of people, sometimes for profit, sometimes for random principles, but we have to rebuild it into something better.

Ken Harbaugh:

I’m Ken Harbaugh, and this is Burn the Boats, a podcast about big decisions. On Burn the Boats, I interview political leaders and other history makers about choices they confront when failure is not an option.

My guest today is Kareem Crayton, an attorney, law professor, and academic, whose work explores the effects of state sanctioned racial discrimination on campaigns, elections and governance. He served as the executive director of the Southern Coalition for Social Justice and is the founder and managing partner of Crimcard Consulting, which is now advising, among other clients, the Virginia Redistricting Commission.

Kareem is also a high school classmate of mine. Welcome to Burn the Boats.

Kareem Crayton:

Thanks so much. I'm glad to be with you.

Ken Harbaugh:

So it's been, what, 30 years? Whatcha been up to?

Kareem Crayton:

Oh the time, how it flies. Yes. A lot of stuff, but learning a lot about redistricting and it's something I picked up in college, got interested in. Actually because of the experience in Montgomery in 1992, the first redistricting with strong application of the Voting Rights Act and got interested, decided to take that into a PhD program and took that on into law school. And so, I decided, yeah, this was going to be the cause of my life. So that's what I've been doing in different forms and in different perspectives, basically since leaving Montgomery.

Ken Harbaugh:

Well, you skipped over Harvard Undergrad, a few professorships. It's safe to say, you've done pretty well for yourself. I do, definitely, want to talk about the redistricting work that you've been engaged in and we'll start with what you're working on now in Virginia. And I guess I want to ask another question. How worried should we be about the election law changes that we're seeing, the redistricting efforts that we're seeing, especially in swing states with Republican controlled legislatures? Are the alarm bells that are going off over hyped or should we be worried?

Kareem Crayton:

So generally speaking, I think we do need to be worried. And I say that as, as you point out, a professor, a scholar who's studied this for a long time and also, frankly, as a citizen who has observed stuff that we, I think, never expected we would in the modern era. And I'll tell you what I mean by that: I started doing work in political science, and typically, in the conversation about American politics as compared to international politics or comparative politics, looking at other countries, there's always this expectation that the stability of the United States, particularly the balance and the party system was always something that would keep things pretty much in the middle of the road. Yes, we'd go to the right sometimes. It might go to the left sometimes, but for the most part, you could expect that stability was the name of the game. For the most part. And, unfortunately, I think the last few years, particularly the last presidential election, had made abundantly clear that for those of us who think about this carefully, democracy has always been, even in the United States, a tenuous project and it requires people to really commit to developing it and also protecting elements even when it doesn't necessarily help you in the short term. There's some commitment to the system and the process that overrides all. And that had fallen away from our public discourse. And I'll just say specifically, I never thought that I would live to see a nationally contested presidential election where, at the end of it, there was one side that explicitly went after the legitimacy of outcomes and process in states even chaired by their own party. And that's what we're seeing.

So this widespread effort to quote, (and I say quote because it's not really) "audit" elections and frankly, then to roll back provisions that have been helpful in allowing people to exercise their right to vote is very troubling.

Now, it's not new. It comes from, in my view, a long line of steps that had gone from things like people working on the edges to get advantages in gerrymandering. That's always existed. It's gotten a lot worse now. To places where people have decided to ignore the rights of people of color to have full and fair access to the political system.

When all these things have been pitched, they've usually been involving a court case and people have reasoned arguments that they'd offer that says well you shouldn't do things like expand the ballot. But all of that in my view has led to this point where people recognizing that the population is changing and not particularly being comfortable with it, realize that votes and elections aren't going to do the trick anymore. So now we essentially tilt the table. And that's a scary thing when it comes to democracy.

Of course, the project only works if both sides, in fact all sides, are committed to it whether it's a win for you in an election or a loss. But what happens, taking you back to the point about comparative politics, sometimes it happens that a group is so disgruntled with an outcome that they want to depart from the project entirely and they resort to violence and they resort to manipulating heretofore seen as sacrosanct institutions. So I think if you look at what's happening on the court right now, that's another element of how people have decided, by any means necessary, control is going to be maintained and that's a scary thing from a perspective of those who actually believe that law actually should govern, to some degree, how elections are managed.

That's a lot to say but you asked me for a dissertation.

Ken Harbaugh:

I’ve got a lot to follow up on. I'll start with the last thing you said. As a scholar and student of the court system, what do you make of Amy Coney Barrett's admonition about the Court becoming over politicized? This after, of course, she appeared on the White House balcony with President Trump. Is that a concern of yours and how do you parse the hypocrisy of those raising that concern?

Kareem Crayton:

Well, this is one of those ongoing things that law professors, particularly those who teach Constitutional Law, remind us that the law and the Constitution are all supposed to be blind to partisan interests. And courts are, right, in some ways the guardians of assuring that that's true. The problem has been that the appointment of justices, particularly to the United States Supreme Court, but not just there, has become terribly politicized. And again, as much as we've been talking about the election system becoming a winner take all at all costs project, the appointments to courts have really followed the same track.

Again, speaking for myself on this, only, my view of this is the appointment, that particular appointment, but that's not the only one, has just followed such an atypical trajectory where the Republicans, God bless them, said we won't have an appointment in an election year, which is what led them to deny a place to Merrick Garland on the Court in the latter days of the Obama administration, decides to just jettison that plan entirely. So now it's a ‘might makes right’ rule. If we've got the majority, we do what we want. And frankly that informs how courts work, unfortunately.

To me, I'm very concerned, to answer your question directly, about judges who don't take that very seriously, both in spouting off. Justice Coney Barrett isn't the only one who's done that. There's an exchange now with Justice Alito going after members of the press about what he thinks is intemperate commentary. This isn't what judges typically do, and I think it's not good for the institution as a whole. I don't know how we get back this project, but it does seem to me where we have a, frankly, an assortment of politicized interests and money interests, who will use any and all means necessary to get their preferred judge on a court, I just don't think what you get is an unbiased and neutral arbiter of decisions. And as we see more and more of these politicized issues presented to the court, I don't know how anybody expects a court to make a decision that can be viewed as fair. And I think it's reflected, frankly, in the public confidence in the Court, which is at one of the all time lows.

Ken Harbaugh:

Your comment about might makes right doesn't just implicate the courts and the process by which judges are appointed and confirmed, it seems to be dominating the way Republican legislatures are seeking to cement their majorities, whether or not they have the support of the majority of the population. The M.O. seems to be in the redistricting battles we're seeing around the country. How do we cement minoritarian rule? You're part of, or at least an advisor to one of these redistricting commissions. Are you picking up on that in the conversations with Republicans at the heart of these decisions?

Kareem Crayton:

Well I'm a little loath to talk about current projects that I'm working on. So I will just say, in general, my experience has been... Here's the main point to mention, of the states that have adopted commission forms of redistricting management, which intend to take away, at least in theory, politics out of that decision and focus more on the people choosing their elected representatives and not the other way around, those have happened in blue states. Or, at best, mixed states. They haven't happened in Republican states and I think one of the reasons it has been so resisted is that there is this interest, and maybe concern, that people feel as though if we do this, we lose power. And it's a real challenge when you're dealing with a population that is rapidly changing.

Take Texas, for example. In the 2010 cycle, the significant growth in that state, and it's been astronomic, has all been people of color. And what you saw was a district map that purely out of partisan reasons, focused all opportunities, the new opportunities on the more rural and more white parts of the electorate. And it was intended to do what Republicans wanted, which was to entrench their power long term. So far it seems that they're doing the same thing by sometimes grouping Democratic members, but more important than that, grouping people of color in districts that are reflective of the choices of minority voters. And that is just one of those things where it wasn't that long ago where everybody agreed that the voting rights act should be a provision that everybody, regardless of party, should support. And now, you get these very diametrically opposed views about whether it should exist and if it does exist, whether it ought to be a fulsome way to help minority voters. That is a grave concern.

And again, when you get to the point where the basic foundational choices about how democracies work are, themselves, being contested, it's dangerous. Very dangerous. So yeah, I'm concerned about it all. It, unfortunately, has a very partisan flavor. I don't think it means that all Republicans feel this way. I am concerned about the sometimes silence by the part of our Republican colleagues who know better to speak out against it.

Ken Harbaugh:

Let's step back for a minute because I want to get your take on the balance that has to be struck when drawing these districts. You've written about the obligation of the federal government to examine or intervene when there is, and I'll quote you, "the unnecessary dispersion or over concentration of votes of black communities." So that seems like a fine line when I think about the most commonly lamented downside of gerrymandering, it's uncompetitive seats. But then I think about some of the representatives who have gotten the most done and it's because they're from uncompetitive seats. Can you give us the layman's version of why gerrymandering is anti-democratic?

Kareem Crayton:

Well gerrymandering as a general matter is- People define it differently but I tend to accept those definitions that take the view that where the thrust of public will points in a particular direction and a line drawer manipulates that so it appears as though the will, as it's expressed, is exactly the opposite, then you're doing something that's artificial.

So if it turns out they, statewide is usually how political scientists look at it, if the percentage of votes in an entire state tend to be cast for Party A but somehow, they're funneled into a system that actually gives Party B not only the majority but a super majority of votes, there's something fundamentally wrong with the system if we believe that this thing that we call democracy is that the majority should have its will.

There's a lot of distance between what is a reasonable way of drawing districts and those that aren't, but if you deny a majority the ability to express its will, that's how, generally, we would define a gerrymandered map. The challenge, where you lay a race onto this is we also have to contend with a history in which the state has explicitly in a lot of our states in this country, explicitly been organized around the principle of denying or limiting the ability of people of color to cast ballots, right?

You and I, we graduated in a state where, sadly, even now, in our state's constitution, adopted in 1901, there's language that basically entrenches white rule. And I didn't just make that up. It's in the words. Now the challenge is how do we deal with that legacy, and that's really what the Voting Rights Act and organizing districts that give minority groups an opportunity to elect a candidate comes in.

When African Americans are large enough, just for an example to be a majority of a district and we show that without those districts their preferred choice always loses, that's a place where we say, given our history, we want to make sure that they have that ability. That's not always the case, though. There may be instances where it doesn't take a majority of people of color to drive outcomes in a district. And in those instances, and by the way, we're driven by data to try to determine what those factors are, in those instances, though, where there isn't that, what we call polarization, you might have fewer, a lower percentage of African Americans who can work in concert with white voters or voters of other racial groups to elect their preferred candidates. That's how this generally works.

There has been- we needed, I think, particularly in the American south, districts that were a majority African American profile for a large part of the south to get members who reflected those interests elected. And they actually, to your point, have become some of the most significant leaders that we have in Congress and in state legislatures.

As we go forward, it may be, and in some places I think it's been shown, that you can get people elected that are preferred candidates in less robust, if you will, lower than 50% African American or Latino districts. But it really will depend on the circumstances and our concern, my concern, always when I talk with clients is, look, let's not prejudge any of this. All we know is what our current map looks like. But what we need to do are two things: let's look at the data and see what the performance has been of a given district map, but let's also talk to people, the people who are actually governed by these maps and hear what they have to say. And when you do both of those things, you build a record that supports a district configuration that goes one direction or another.

These aren't easy issues to settle, to be sure, but the goal is always to try to make a local appraisal, which is what the law requires you to do, of what the best political configuration is that gives people a voice. And where we know that race discrimination has been a part of a community's political history, we want to be sensitive to, as you say, doing enough to be effective but not so much as to be counterproductive, to allow people to have their voice heard in as many districts as possible.

Ken Harbaugh:

Why are courts so, at least historically, loath to intervene in these dramas, often saying, “Look, this is a political matter, this is for the legislature to decide, we're out”?

Kareem Crayton:

Well, traditionally, courts, certainly the federal courts are unelected and therefore are seen to be apolitical. So on matters that are "political questions" the court doesn't get involved. The issue, usually, when you deal with districting is that it is intensely political. The implications are dire for one party or another in the next election and everybody's attuned to it. And so the court is always sensitive to the question, “all right, if we get involved in this, how are we going to avoid the allegation that we're doing it to help Party A or Party B?” And usually that's an answer that is rooted in this idea of principles: Are there rules and standards that will guide the decision making so that it isn't a different outcome whether it's the Republicans or the Democrats come again to complain.

The problem has been that, unfortunately as of late, some of the laws and standards that have been developed in this area, just for an example, one that got the modern era going is that you have to keep districts that are roughly equally populated on the map. So every 10 years or so, we do a census and we need to reflect those changes in the population in the map so that one person roughly has the same power in casting their vote as another person living in another district. The problem, unfortunately, is even those rules have now become partisan weapons. There's one party that thinks you should, again, have a fulsome application of one person, one vote. Others say that we only want to count citizens. And that's just not what the rules had been. When that comes into play, then everything becomes a politicized issue and the courts find themselves knee deep in it.

I'll take you back to the point you made earlier. It only gets worse when you have members of a court who jump into this from a very partisan perspective. And so there's been talk about what is described as the Shadow Docket, the ability of the United States Supreme Court to, essentially, make decisions affecting law without actually having a case, but essentially determining whether they will stay or refuse to stay a pending decision that comes from the federal courts on an emergency basis.

So those decisions, particularly in the context of an election, just as an example, do you keep polling places open for a longer period of time due to, say, weather issues? Or as became really relevant during the pandemic, we're still in it but in the middle of our Presidential election, we had instances where people were concerned about getting access to drop ballots without having to show up in a polling place and risking their health. The Supreme Court intervened in some instances and didn't intervene, usually to curtail the ability of states to provide those options. Those decisions have a huge impact on political outcomes. And it's becoming more and more tenuous, it seems to me, for the court to maintain its distance from politics if it's not obvious for those of us who are looking at their opinions to see that they're being guided in a straightforward and predictable way about applying a rule. So that's really the challenge with all of it.

Ken Harbaugh:

It just seems to me that if ever there was an occasion for the Court to intervene, even if it felt like stepping on legislative prerogative, it would be an instance in which democracy itself was at stake. And I think we're hearing plenty now that suggests that we're seeing existential threats to the right to vote, what Ezra Klein refers to as the Doom Spiral of Democracy, if you get this vicious cycle where minoritarian rule is cemented through voter repression and discrimination and even manipulating vote counts, then it makes it even harder to vote. It just gets worse and worse and worse and the only remedy is either a court decision or something kinetic which is unthinkable, although more and more people are talking that way.

I don't know that there's a question in there, but it frustrates me to no end that the Court will not find the mettle to weigh in here when we're facing a threat to democracy itself.

Kareem Crayton:

I tend to agree with you. Unfortunately, I also think there are some things that have been unsettled that we collectively as a country are going to have to settle. One of them actually is reflected in the decision that the President has taken to create a commission to address the question: does the Court need to be reformed? There's definitely an argument out there that the Court should be expanded. I think those arguments become more reasonable the more we see the Court subject to these, in my view, pretty brazen efforts to manipulate appointments to get on the Court that aren't really rooted in reason or consistency.

I think there's another piece of this that you mentioned that, really, again is the unfinished business, and unfortunately, is another source of a lot of controversy and it is what it means to have the right to vote, right? What we see in other modern democracies is a commitment, explicit in the Constitution, that everybody who is a part of the political community in a country gets the right to vote and it is guaranteed as a matter of right. In our country, unfortunately, we haven't had that tradition and it is not reflected, explicitly, in law, right? Our laws and our constitutional provisions give you a series of things that the state can't do, but it does not affirm that the ability to cast a ballot is a right. And, in fact, you'll sometimes hear people say, well this is a privilege, so it can be denied when we want it to be.

And to your point earlier, it seems to me that if you're talking about the right to vote, we have a lot of court opinions that say it's sacrosanct, it's the foundational platform for all other rights to exist. But we don't treat it that way in our case law, right? An administrative preference can lead to the limitation on a significant community that can show impact that you don't get to exercise your right. You have to overcome more hardships. We've got a state in which people who have actually gone to the ballot and said, "Look we don't care that you have a record in your past of a felony. We think that you should have a route back to be able to cast a ballot and we want to create a system that's open to you." I'm talking about the state of Florida. They've gone out of their way to make it very difficult for people, notwithstanding this Constitutional amendment that the people spoke up for, that says,

'”Well you've got to go through a lot more hurdles to make that happen.” It's just not consistent with what I understand to be a right that is said to be fundamental.

But we probably should think about what it means and what it takes to have an affirmative commitment to the right to vote. There's plenty more to do in addition to that, but I think one reason that courts and some states are willing to play fast and loose with taking that seriously is that it's not textually committed. And I think we ought to.

Ken Harbaugh:

When you refer to some states, or when you say that people are worried that the population is changing and they don't like it, I just want to put a fine point on that. We're talking about a Republican party that has realized that it cannot maintain or govern with a shrinking coalition, with policies that are broadly unpopular. Their voter strategy today seems to be consisting of solely animating a hardcore base while alienating everybody else, but they can still pull it off as long as the people they are making it hard to vote for are in big cities or are minorities. This is not a ‘both sides’ problem, is it?

Kareem Crayton:

I will say, I think that's right. We shouldn't pull punches about it. Unfortunately the party as a whole, we know evidence of people trying to push against this, but the party at present has seemed to embrace the idea that even if the numbers aren't in your favor, you can tilt the table and try everything that you can to win elections. The point at which we lose hold on the notion that, again, commitments like democracy should reflect the majority will or that everybody gets an opportunity to speak up and cast a vote in an election, that becomes partisan, then I think the whole deal of this system doesn't work. And what scares me is, again, I have faith. Every time we've had conversations about voting rights in this country, when something gets done, Democrats and Republicans have worked together and people in the middle who don't affiliate. And that's necessary for our system to work. Because somebody is going to win and lose an election.

What we don't want to happen is the crumbling and essentially, I don't know any other way to put it, the demolition of democracy. At the point at which we've got a party that seems okay with that, it's a challenge. It's a challenge. And I have to say, God love them, I see our Republican friends sometimes get into this space of winning at all costs and where the leadership is doing that you have to have people speaking up. And sometimes that happens. Not enough. Where the party has to say, "You know what? We can't do that. We can't do that. We have a long term interest in appealing to people." And I guess this is the point you were referencing earlier, it used to be the case when you lose an election, you figure out where the people are and you find the people. But if your solution to this problem is that you lose an election and you just want to cut out some of the electorate, that's a lot of things, but that's not a democracy. And it used to be the case that every American understood that. That's what scares me.

Ken Harbaugh:

The redistricting commissions, such as the one in Virginia that you're assisting are an example, at least in theory, of that coming together, right? They are designed to be bipartisan in nature. They're designed to get at the problem with the strengthening of democracy in mind and it's a way to force both sides to figure out a compromise. Is that a fair, albeit, rough summary of what the commissions are supposed to do?

Kareem Crayton:

I think in theory, states that have adopted commissions are intended to try to find places in the middle where people of all political stripes, when they're done that way, Democrat, Republican, unaffiliated, can get beyond politics and talk about the things that matter to real people in the state. And yet that has political implications. But you do it in a way that makes decisions on principle, without getting into the back room deals. That you do so in a transparent way. You do so with data.

So Virginia is one of the states that is attempting to do it. They've done it in somewhat different ways. They've chosen both to have Democrats and Republicans, but not unaffiliated people. They've also chosen, which is a new thing, certainly in the south, they've chosen to combine citizens with elected. And that's been an interesting and I think, and challenging, in some ways, conversation. But I think the effort that they've put forward is really intended to try to craft a model for the rest of the south. For a southern state to try this and I think so far, there have been heated discussions but I think discussions that have at least put forward hard calls that have happened in a state that is rapidly changing. That's the gospel truth of it all.

Ken Harbaugh:

But most states don't have these commissions. In most states it's just a bare knuckle brawl. might makes right fight, controlled by those who currently hold those state legislatures, regardless of what the majority of the people want, right?

Kareem Crayton:

That's correct and that's actually one of the challenges of dealing with a few states that have adopted commissions. A growing number, but still fewer than the ones that are, as you say, your traditional legislative driven partisan heavy processes. I've worked in both processes and each has its upsides and downsides. What I want to offer is, in this context, of course, everything has become nationalized. And that's really one of the big challenges for all of these processes.

States pride themselves on having individual identities and choices and policies that drive how their political culture works. One of the features we just have to come to grips with is given how close things are in the United States Congress, every election is a national election and there are a lot of forces put on these state processes, whether they're commissions or not, that are really carefully looking at well, what does this mean for the national government? Do the D's outnumber the R's or vice versa. And that's a real challenge. That's a real challenge. But I think it means that for these otherwise partisan processes in legislatures, they become hyper partisan because not only do you have the internal networks of parties, you've got the national party leaders coming in and pushing as well. But you're right. In these legislative settings, it is usually a might makes right process, limited sometimes by some rules that are put in place that try to guide the structure. But that's a rare thing, indeed.

So, for example in Iowa, which doesn't quite have a commission, there's an administrative process that creates a map and the legislature has to vote it up or down. There apparently are attacks on even that now. But my hope is that, at least in Iowa, that it gets maintained. The question for the long term is in these legislative processes is there ever going to be a point at which you can step away and say there's a better way to do this, at least from the perspective of not being guided purely by politics. Because the moment you get to that, it is, as you say, might makes right and no holds are barred. To finish the point, I'll just say, this was not helped at all by the United States Supreme Court in a case. I had some involvement with denying any federal oversight over partisan gerrymandering. The moment they open the flood gates, people are going to fill it and I think we're seeing now the essentially post script in that. A lot of people feel perfectly comfortable going after people of the disfavored party because they can and they know, at least at the federal court level, nobody's going to do anything about it.

Ken Harbaugh:

To your point about everything becoming nationalized these days, I want to read for you an excerpt from your application to serve as an advisor to the Virginia Redistricting Commission. This is a questionnaire that the Commission put out in its request for proposals and it included a lot of the pro forma questions like “Do you know of any conflicts that would inhibit you from performing your task?” or “Are you willing to negotiate regarding your time and fee structure?”, But is also included this in the official questionnaire for businesses like yours: "Who won the 2020 Presidential Election? And is there a reasonable legal basis to question the outcome of the election?"

I mean that's just extraordinary to me that a Redistricting Commission has to establish that baseline. Do you remember filling out that form and reading that?

Kareem Crayton:

I do and it did strike me as a sign of the times, right. I mean this was right on the heels of a very contested Presidential election even after the right numbers came in and that's the thing. You're asking lawyers these questions. We have an obligation to abide by rules even if the rules, as applied, don't result in the outcome that we might prefer and become happy about.

But I think in this day and age, you just never know what's going to happen. My hope is that a lot of these, particularly, again, officers of the court, I'll speak about that. Lawyers who should know better are doing things that really erode the legitimacy of the court, but also the foundation of our democracy. A lot of them are hearing from courts for behavior that is unbecoming. So individuals are being found in contempt. Individuals are brought into court in defamation lawsuits. I don't want to be too Pollyanna-ish about this because I don't think it will all take care of itself from this, but I do think our system has some checks to try to cut back on that.

But again, to your point. You're asking the question about how everything has become politicized, I can understand why the Commission wanted to ask that question. I lament the fact that they have to ask that question, but I can see why they put it in the questionnaire.

Ken Harbaugh:

I want to switch gears just because it's not every day I get to talk to a classmate from 30 years ago who grew up with me in the cradle of the Confederacy. And you've written about some of the symbology that we were surrounded by. And I've had some fascinating conversations on this show with scholars of that and one of them was with Kathleen Belew who was trying to explain how the Confederate flag, which was of such totemic significance in the Deep South in our youth, has been adopted across the country now as God knows what, but among other things, “Separatism”, “Anti-government”, and “Independence” in air quotes. How in the heck do you explain the migration of this symbol, which was always defended as a nod to southern heritage and I'll grant that as long as you include treason and racism and terror in that heritage and it's now being picked up by northerners in states that fought the Confederacy?

Kareem Crayton:

You know, that's a big question and I've thought about it a lot, particularly now, right. I mean we are at an interesting moment. As I told you, I'm sitting in Richmond where people, at least will also say they too own a piece of the Confederate story, and both in Montgomery and in Richmond, we're seeing these interesting moments of, I suppose it's a reckoning, but an accounting of that history and how it has affected a lot of different people. And by that I mean very explicitly that you have all of these symbols that are intended to be, as some would have it, entrenching heritage only. They don't mean hate. But all of a sudden people are now hearing that actually those things are harmful. They are symbols of trauma. And we're working to change it.

The Mayor in Montgomery, thank you by the way, first African American mayor of the city, has started to rename things, removing names of Confederates who never lived in Montgomery or even stepped foot in Montgomery, for native Montgomrians. Similarly in Richmond that you've got people removing statues, the Lee statue and I forget the name of the avenue, Memorial Avenue, is being removed. But at the same time as your point offers, you're seeing the spread of this in places that don't actually have a historical connection to the Confederacy.

Kareem Crayton:

I remember actually being in-

Ken Harbaugh:

Except to fight it.

Kareem Crayton:

Well, yes, that, too. That's right. And that's the weird part, right? I mean you have people who take bits and pieces that served a- I don't know if it's psychological or sociological, but some need to feel a part of something that was lost and that's their way of expressing it.

But I'll tell you another story. Because I actually think some of this- You know, we tell ourselves stories to, I think, achieve certain ends, ultimately. And they're fables or psalms, or whatever you want to make it, but they're symbols, too, that function that way. I still am struck by the story out of South Carolina and it was in 2015 where, and I won't mention his name, the young man went into a church basement and took the lives of nine people who let him in during a prayer service. To be as about as despicable as it gets. But put that to the side. What I note is that in his pictures this kid, who was from the south, I don't know if he ever set foot out of the country, had a patch on his jacket from the Republic of Rhodesia. But Rhodesia is now Zimbabwe but Rhodesia was when a white minority ran what was a majority black country. Now I don't know why he had a connection, or saw a connection to Rhodesia, but I think people see a connection to, and I will call it the illusion of power, and to me, the flag, when it is flown in these other places, is really intended to be, my view is, at times this hearkening back to a time that actually never was but they wish it would be. And that's...

When I see it, I get a little concerned, but I actually think it's fair to say, you see people try to tell a story that doesn't involve race, but obviously you can't understand the Confederacy without thinking about race and, I know you didn't ask this, but I'm just going to say it anyway: One of the fascinating parts about how we're talking about what is deemed ‘Critical Race Theory’ which is itself a misnomer, but telling the complete story of America, its highs, its lows, everything in between, that that is contested, to me, is as threatening to the maintenance of our democracy as some of these efforts that we've been talking about in a formal way to undermine the right to vote. We have to understand that we are part of a community and that our community consists of people with a lot of different experiences. If we want to fence certain experiences out, that's not a community that's America. I fear that people are going to become more and more committed to doing it by any means necessary, but, and I do want to sound hopeful in this respect, it's our job as people who believe that we have to be better than that and that's not really what our country is meant to do, we have to push back against it. And it means often that people who are Republicans or who are white governors, have to speak out. It just can't be always, right, the people on one side of either the political divide or within one racial group. We've all got to speak out against it. But it's a long process.

Ken Harbaugh:

I appreciate the hopefulness. Indulge me for a minute though. Put the pessimist hat back on and what happens if the rural school boards purge any mention of race or as some in states like Texas have put it, subjects that will make students feel uncomfortable? What happens if a deep red state with, at least legislatively, changing populations, find a way to cement their minoritarian rule. What's the worst case scenario here? And I'm not just asking you as a legal scholar, I'm asking you as someone who grew up in Montgomery, Alabama.

Kareem Crayton:

Well, I mean, I'll just tell you. I would actually put another hat on to try to answer this question and that's political scientist. I think the idea of American exceptionalism has been frayed in the last few years. I think there have always been people who questioned it, but the facts are becoming more apparent. When you look at other countries where this kind of thing has happened, again, the manipulation of the electoral process, the forcing of particular kinds of learning and alienating serious critical thought of any type, what you usually get is one of two things. You either get totalitarianism or you get an armed revolt. And that, again, is the nightmare scenario that I hope everybody is at least understanding now. Frankly, we came pretty darned close to that on January 6th of this year. And our reaction to it, our efforts to investigate and understand it, have now been subject to the same sort of back and forth manipulation that doesn't take this as seriously as I think we should.

So what happens? I mean I would not like to have zones of this country where you just can't learn the full story or you can't exercise all of your rights. I mean there have been people, I guess going back to what you said about growing up in Montgomery, I remember hearing a lot of people at different points in political discourse, not necessarily in Montgomery, but other places saying, "If you don't like it, leave." I will tell you as a black person who grew up in Montgomery, it's like, well, people like me built this place and they didn't do it for pay. So why would we leave? And I guess that's the point I think most people really have to understand. And frankly, this is true as much as people talk about it from the right.

There are also some people, and I don't mean to ‘both sides’ it, but there's some people who say well why, if it's so horrible there, you all should just leave. As a southerner, I find that it is important to have as much entitlement and attachment to the space that is the south, a place that you've helped to create and form and build, again, often for a lot of people, for a long period of time, without compensation? That's exactly the place where you recommit. I acknowledge that sometimes I sound a little bit more optimistic than sometimes the facts might support, but when you come from a people who began in a very disfavored position in this country, you have to be supported by faith and optimism.

And, frankly, as recently as the 1950s, it wasn't all that long that we've had these rights that we're fighting over right now to fully enjoy. We have to keep fighting and our commitment to this country, as much as we might also be frustrated by decisions taken at any given moment, I imagine, in the military there were decisions taken by leaders that you may or may not have fully appreciated or embraced but the job is, the commitment is, to try to work with the team. And in my view, our community is the principle that we should all be working very hard to develop. And sometimes that means working hard against people who want to dissolve it, who don't care that much about it.

But I do believe, and again, I don't mean to sound... I'm not a politician, thank heavens, but I like to support them when they do the right thing. I firmly believe that it is worth the effort to create a community that is really focused on helping everyone, no matter what their situation is.

Ken, I need to tell a quick story and I promise it won't be too long.

Ken Harbaugh:

Please do.

Kareem Crayton:

But I'm reminded of another fellow Alabamian, one of the greatest in my view that the state ever produced, John Lewis. Georgia claims him, but he comes from Alabama.

His speech on the March on Washington was so powerful for a number of reasons, but what I love that he said was, in one breath he said something bold, in his early 20s, I don't think I was this bold at that age. "We will rip," I'm paraphrasing. "We will rip apart Jim Crow and segregation to 10,000 pieces." He said that in 1963, right? So this was in the midst of the crazy. But then in the same breath, he said, "and we will rebuild this society in the face of God and democracy."

To me, that's the point. This isn't just about destroying things and deconstructing things- We need to do that. We need to stop the foolishness that has informed the exclusion and marginalization of people, sometimes for profit, sometimes for random principles, but we have to rebuild it into something better. And my goal always is whatever the work is, sometimes we have to speak some hard truths to each other, but we do it for the purpose of building something better for all of us, that everybody has a place at the table, everybody has a chance to contribute but that has to mean that sometimes when we see that there's inequality, we work to remedy it. And that's really the challenge of all this. These political contests are filled with their intrigue, but if we can get at the core of it and focus on ‘What allows everybody to have a chance and an opportunity?’

I think there are answers to that that can keep most people reasonably satisfied, but we've got to be able to do it. And that's right. Now, I think the fight that we're in. We've got to be willing in principle, to say “You know what? That actually is okay and I'm sad to say that that's actually a contested point.” But I don't think it's one that we are incapable of achieving. It's just going to take a lot of work.

Ken Harbaugh:

Well, I am content to end on that hopeful note. We always wrap up the show with the same question, so Kareem, what is the bravest decision you've ever been a part of?

Kareem Crayton:

Oof. The bravest decision I've ever been a part of, my gosh and I'm telling this, I'm going to answer this to a person who served in the military. Well let me think about that. The bravest decision that I can think of at the moment was stepping out and crafting my own consulting service. I think I spent my life thinking about institutions and feeling a sense of comfort in them and what I realized is that there's strength in designing and developing your own brand, and pursuing things that reflect your interests. So there's a beauty in that and to be able to build that has been, in some ways a scary thing, but also, I think, in a lot of different ways, terribly fulfilling. So, again, does it rise to a grand courageous level of brave, but I think, for me and my journey, has been an important departure that has allowed me to do some things I don't think I could have imagined when I started out in college.

Ken Harbaugh:

Well, I'm glad you're doing it. I'm glad you're in the fight, so to speak, and helping the Virginia Redistricting Commission and others. Let's do this again and let's not wait another 30 years. It's been great talking to you, Kareem.

Kareem Crayton:

We won't. I look forward to doing it again, and definitely within 30 years.

Ken Harbaugh:

All right. All right. Thank you.

Kareem Crayton:

All right, take care.

Ken Harbaugh:

Thanks again to Kareem for joining me.

You can learn more about Kareem and his work at kereemcratyon.com

You can also follow him on Twitter at @KareemCrayton

Thanks for listening to Burn the Boats. If you have any feedback, please email the team at [email protected]. We’re always looking to improve the show.

Thanks to our partner, VoteVets. Their mission is to give a voice to veterans on matters of national security, veterans’ care, and issues that affect the lives of those who have served. VoteVets is backed by more than 700,000 veterans, family members, and their supporters. To learn more, go to VoteVets.org.

Burn the Boats is a production of Evergreen Podcasts. Our producer is Declan Rohrs, and Sean Rule-Hoffman is our Audio Engineer. Special thanks to Evergreen executive producers Joan Andrews, Michael DeAloia, and David Moss.

I’m Ken Harbaugh and this is Burn the Boats, a podcast about big decisions.

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