Fair redistricting is essential to our democracy, and this year represents an opportunity to ensure that, in the future, communities of color will have the opportunity to elect representatives of their choice. The Voting Rights Act of 1965 (VRA) has been a safeguard for minority representation in elections since its enactment 56 years ago. VRA Section 5 represented a cornerstone of this protection by requiring those States, or their political subdivisions, with a history of discriminatory voting procedures to obtain federal approval before implementing changes to their geographic voter districts (or any other change in standard, practice of procedure). When the U.S. Supreme Court ruled VRA Section 4 unconstitutional in 2013 (in Shelby County v. Holder), it effectively rendered Section 5 inoperable. While many had hoped the U.S. Congress would enact a work around to revitalize Section 5 before the 2020 census was completed and redistricting (based on revised population figures) started, this has yet to occur. Without the protection of Section 5, communities of color are at increased peril of disenfranchisement through unrepresentative redistricting.
The United States has a checkered history of minority voter exclusion and unfair redistricting practices. Much work has yet to be done to secure fully representative voter districting. This is important at all levels of government, as redistricting affects maps for local city councils, county commissions, and school boards, in addition to state legislatures and federal congressional seats. The loss of VRA Section 5 protections adds to the challenge of blocking unfair redistricting efforts.
Redistricting is not a partisan issue; it is not simply a tool for one political party to gain advantage over another. More importantly, it is a racial justice issue, as the voting will of minority groups is being repeatedly negated in gerrymandered districts. Giving voice to these communities begins with fair redistricting maps, allowing communities of color to elect leaders of their choice to represent them at all levels of government. Redistricting is an essential component of election protection work, giving true power to the right to vote.
In partnership with Pro Bono Institute (PBI), the Lawyers’ Committee for Civil Rights Under Law (LCCRUL) recently presented a program on Empowering Communities of Color through Fair Redistricting Plans to several dozen pro bono leaders from law firms and legal departments across the U.S. The panelists discussed pro bono opportunities to support fair, non-partisan, redistricting and ensure that minority voices are heard in upcoming election cycles. The LCCRUL speakers also outlined redistricting principles and legal issues to consider when assessing redistricting maps in 2021; including a plan to combat unfair redistricting, emphasizing community involvement and advocacy to ensure clients feel supported throughout this process.
Advocates need to engage with the public and promote education surrounding redistricting in order to recognize and challenge unfair redistricting maps. After evaluating redistricting maps, advocates must challenge unfair maps and promote alternative maps that better represent and empower communities of color. When necessary, lawyers can pursue litigation, particularly if maps are implemented that attempt to silence minority groups in their local, state, and federal maps.
There are many ways for both law firms and corporate legal departments to support and focus their pro bono efforts on fair redistricting, including research efforts, assisting community groups, and litigation if necessary. In addition to community engagement and advocacy, the presenters identified other ways in which redistricting maps can be legally challenged. Even without the protection of Section 5, legal assistance can still be utilized to make claims under Section 2 of the VRA, which prohibits discriminatory voting practices. Claims can also be made against racially gerrymandered districts, particularly when maps are drawn to intentionally pack minorities into fewer districts or when they are deliberately spread across many districts with the intention of diminishing their voting strength.
Many pro bono programs participated in the LCCRUL’s nonpartisan Election Protection program to protect voter rights in the 2020 election, and these redistricting pro bono efforts are a natural next step. If you or your firm or legal department is interested in learning more about how to engage in the LCCRUL’s redistricting work, please contact Nancy Anderson, Director of Pro Bono, at email@example.com. If you missed the recent program and would like to view a recording, please contact firstname.lastname@example.org.
Many thanks to PBI Intern Robin Reikes for her work on this blog.