Across the country, lawyers and voting rights advocates are bringing fresh vigor to the fight against unjust election practices. Just last week, a federal judge in North Carolina struck down a set of local electoral boundaries as unconstitutional, the latest in a series of similar rulings in the state.
Particularly as political and legal communities reorient themselves in the wake of the 2016 election, a palpable sense of energy and urgency has emerged around combating the scourge of gerrymandering, the maligned (but widespread) practice of drawing electoral districts to curtail the voting power of certain political or racial constituencies. As legal forces prepare to ramp up this critical fight for fair elections, it's important that these efforts be responsive to, and inclusive of, the very citizens who are threatened by gerrymandering's corrosive effects. In light of the chilling objectives of gerrymandering — muting or muffling the voices of communities in our elections — it is especially appropriate that the legal battle for redistricting reform be as inclusive and democratic as possible.
Although impact litigation is among many important mechanisms for positive change in our democracy, it traditionally has lacked the inclusive and galvanizing traits that infuse other forms of activism. Digital tools like CrowdJustice can make it easier for lawyers to give concerned citizens and impacted voters a role in legal action. At a time when voices are being silenced and diluted at the ballot box, giving communities a voice in the fight to reclaim the electoral system is an especially powerful notion.
A Landscape Primed for Legal Action
Gerrymandering is not a recent a phenomenon; many advocates have indeed committed decades to addressing this challenge. But a new level of intensity and interest has been on display in courtrooms and news reports in recent months. Consider this snapshot:
- Encouraging judicial decisions: Beyond North Carolina, reformers have seen several encouraging decisions recently. In March, the Supreme Court ordered a lower court to reexamine whether Virginia's legislature racially gerrymandered legislative districts to dilute the voting power of African-Americans. Within days, that decision was cited by a federal panel in Texas in a ruling that invalidated three of the state's congressional districts as unlawfully limiting the influence of minority voters.
Novel legal strategies: After voting rights lawyers in Whitford v. Gill introduced a quantitative model for measuring partisan gerrymandering [PDF] as part of their case, a three-judge federal panel struck down Wisconsin's legislative districts as unconstitutional, representing the first victory of its kind in 30 years. The case is now on its way to the Supreme Court.
Star treatment: Arnold Schwarzenegger recently teamed with ATTN:, a media company whose mission is to engender greater participation in communities and the political process, to launch a viral digital campaign to highlight the absurdities of gerrymandering and to galvanize public support for reform.
Marquee legal talent: In January, elite Supreme Court litigator Paul Smith — "one of the biggest legal guns in the country" and partner at Jenner & Block — announced that he was leaving to pursue a full-time position with the Campaign Legal Center, a leader in the fight against gerrymandering.
Super-powered organizational efforts: Former Attorney General Eric Holder and powerhouse lawyer Marc Elias recently launched a new organization devoted exclusively to fighting for redistricting reform in the years ahead. The group's active supporters include none other than President Obama, who is targeting redistricting reform as one of his post-presidency priorities.
These developments evoke a legal community that is primed to earnestly fight gerrymandering, and also reflect the central role lawyers and the courts will play in addressing this challenge. But these activities also signal a growing public awareness of, and interest in, issues that the legal community should cultivate and harness. While empowering voters is among the most important outcomes that can result from these battles, we've seen that by using digital techniques like crowdfunding, empowerment can also be a component of the legal strategy itself.
Vesilind v. VA Board of Elections & Democratizing the Fight for Fair Elections
Amid the escalating national profile of redistricting reform, a small nonprofit organization is making an outsized statement in its ongoing lawsuit challenging Virginia's state legislative map. By infusing its litigation strategy with a crowdfunding dimension, the group — OneVirginia2021 — has transformed a somewhat technical and esoteric legal challenge into an inspired, community-powered battle for progress.
Last month, the organization created a CrowdJustice page with the aim of sharing information about their case and raising a modest sum to defray litigation expenses. Within hours, online donations shattered the initial $5,000 target (en route to a $51,000 total) and the page became a centralized hub for information about the case, opportunities to help raise awareness, and resources to better understand the issue of gerrymandering. In the process, OneVirginia2021 enlisted more than a thousand case supporters and cultivated a spirit of community around the case.
While ultimately this case — like any other — will be decided in the courtroom, the community dimension can matter a great deal. We've seen the important ways that the public climate can shape judicial attitudes in meaningful ways — from our country's earliest civil rights struggles, to recent victories for LGBT equality, legal successes have often followed vocal public sentiments. Moreover, democratizing these lawsuits is a potent antidote to unhealthy perceptions that legal activism is a pursuit reserved solely for powerful or well-funded interests.
The volume of cases across the voting rights landscape is expected to rise in the years ahead — owing in part to the Supreme Court's decision to gut core provisions of the Voting Rights Act in Shelby County v. Holder — especially as states begin redrawing districts following the 2020 census. Harnessing resources to support this work is important, as is ensuring that the grassroots and impacted communities are able to engage directly with impactful action in the courts.
As the profile of social and political issues continues to rise, advocates should not undervalue the advantages of giving the public a voice and a role in these efforts. Crowdfunding and other digital organizing tools can create new pathways for empowerment around legal battles — a means of participation that stands in sharp relief to the odious effects of gerrymandering even before the courtroom battles are won. With the integrity of our political system at stake, let's ensure that redistricting reform is a legal cause that's both by and for the People.
Kip Wainscott is Head of Legal and External Relations at CrowdJustice. Kip previously worked at the White House, where he helped the Obama Administration advance a number of priorities related to social justice and opportunity, often through collaboration with technology and community stakeholders to develop digital tools to help meet big challenges. As a lawyer, he’s passionate about removing barriers to justice and ensuring that communities and individuals have access to the courts regardless of their status or circumstance.
Suggested citation: Kip Wainscott, Democratizing the Legal Fight to Reclaim Our Elections, JURIST - Professional Commentary, April 13, 2017, http://jurist.org/hotline/2017/04/Kip-Wainscott-reclaim-our-elections.php
This article was prepared for publication by Val Merlina, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at