No easy answers on fair redistricting reform but lawyers can help

Redrawing state district lines to ensure “one person, one vote” representation in Congress is difficult — but lawyers can join everyday citizens to achieve fair redistricting throughout the country, according to experts who spoke at the American Bar Association Virtual Midyear Meeting on February 14.

The program, “The Challenges of Partisan Redistricting – Does Gerrymandering Pose a Threat to Our Democracy?” was presented by the ABA Committee on Issues of Concern to the Legal Profession on the final day of the conference, which ended with the House of Delegates meeting.

Redistricting, the process of drawing electoral district boundaries, has been a hot-button issue, particularly during these politically charged times. The shifting of map lines and reapportioning of seats in the U.S. House of Representatives can affect election outcomes and policymaking.  

“Redistricting is hard. It exacts a personal toll on everyone involved,” said Phillip Strach, a partner with Nelson Mullins who has represented both plaintiffs and states in redistricting cases for 20 years, including those in North Carolina and Ohio. “There’s a human element to this.” But he also said that it’s an “inherently political process.”

While Strach cautioned taking redrawing of map lines out of the hands of state legislatures, Samuel Wang, director of the nonpartisan Princeton Gerrymandering Project, is an advocate of using objective math-based formulas to help guide redistricting efforts.

“Legislators like to advocate for their own survival,” Wang said. Putting redistricting into the hands of independent citizen commissions, courts or using standards written into law can be successful routes in “bringing some measure of equity and competition” to a redistricting plan so that various groups and parties have a similar equal voice.

Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, views the redistricting process as “inevitably partisan” but said that it doesn’t have to be. He supports independent commissions over legislatures to handle redrawing of maps. However, he said he is troubled by recent Supreme Court rulings that make it more difficult to challenge redistricting in federal courts, especially for the first elections immediately after a census. He supports courts stepping in to stop partisan gerrymandering.

Kathay Feng, national redistricting director for Common Cause, said the redrawing of maps should be an inclusive process performed by a group of individuals who do not have any personal interests tied to the way the lines are drawn. “One of the biggest challenges is when you have a legislator who believes the district belongs to them because they won the last election,” she said. Feng pointed to California, where bipartisan redistricting reform has been  accomplished through an independent commission following a clear set of criteria.

Strach agreed that redistricting reform starts with conversations at kitchen tables, in legislatures and other venues. But first educate yourself on the topic by reading different opinions and then draw your own conclusions. “Don’t talk past each other; talk with each other,” he said. “Be civil about it.”

The panelists agreed that everyone can advocate for reforms by getting involved in nonpartisan organizations, volunteering to be an election official or poll watcher and helping to educate others on the issue. Lawyers also can get involved in litigation and election protection, and offer their specialized skills to assist the cause.

“This is not a temporal issue, but an ongoing issue,” said law professor JoAnne Epps, senior adviser to the president at Temple University, who moderated the panel.