Democrats leverage legal experience in voting rights push

About a dozen lawmakers came to Congress with formal redistricting experience, either as lawyers or state legislators

Rep. Teresa Leger Fernandez, D-N.M., awaits a shuttle bus to the Capitol last November to attend new member orientation. (Bill Clark/CQ Roll Call file photo)
Rep. Teresa Leger Fernandez, D-N.M., awaits a shuttle bus to the Capitol last November to attend new member orientation. (Bill Clark/CQ Roll Call file photo)
Posted July 21, 2021 at 11:00am

First-term Rep. Teresa Leger Fernandez knows what it takes to sue a state over legislative maps alleged to violate the Voting Rights Act — the New Mexico lawyer has done it. 

“These cases could take months on a fast-track basis, where you do not sleep, you do not see your children for four months,” Fernandez said.

Before running for Congress in 2020, the Democrat represented Native American tribes in her state suing over legislative maps after the 2000 census — which resulted in changes to the maps.

Leger Fernandez is among a handful of House voting rights attorneys-turned-lawmakers helping to write the latest version of Democrats’ Voting Rights Act bill, which include provisions to push back on a swath of changes to election laws state legislatures across the country have passed.

[Supreme Court weakens another Voting Rights Act provision]

Leger Fernandez and others argue those changes will make it harder for many Democratic-leaning groups, including minority communities, to cast a ballot. 

About a dozen legislators on both sides of the aisle — although mostly Democrats — have formal experience with redistricting, as attorneys or state legislators.

The attorneys-turned-legislators working on voting rights issues face an uphill battle to get the changes into law. Last month, the Senate voted 50-50 along party lines on a motion to advance a broad federal election and campaign finance bill, falling short of a required 60-vote threshold. 

The measure included new proposed standards on the conduct of elections, such as voting registration requirements, absentee and early voting, and new redistricting standards. With the bill to set new federal standards stalled, attention is now focused on efforts by the House Judiciary and Administration committees to shore up the Voting Rights Act of 1965.

Rep. G.K. Butterfield, D-N.C., a House Administration member, said he intends to send the Judiciary panel a set of recommendations to keep the bill on track for introduction this summer. In a June letter to Democrats, Speaker Nancy Pelosi said the bill would not be ready for a vote before the fall.

Butterfield, like several other members involved in drafting the new bill, has a deep history in redistricting and election issues. His father was elected to the Wilson, N.C., city council in 1953, a rarity for a Black man in the state at the time. But the city switched from a ward-based council to an at-large system, and his father lost reelection in 1957.

“No. 1, it was because of the color of his skin, but also because of the change in election procedure,” Butterfield said. “And I began to understand that any election system, the way it’s constructed, can really influence the outcome of the election.”

Decades at the bar

Through his decades of litigating redistricting and voting rights cases, Butterfield has seen the system evolve, including a 1980 Supreme Court decision that made proving violations of the Voting Rights Act more difficult and a 1982 change enacted by Congress that swung the law back the other way.

Butterfield points to success at the local level. In the 1980s, the Justice Department stepped in using Section 5 of the Voting Rights Act when Rocky Mount, N.C., tried to annex a nearby town. Section 5 allows the DOJ to “preclear” election law changes in certain states and counties to ensure voting rights aren’t affected by the changes. The annexation would have diluted the power of Black voters in Rocky Mount, where they made up almost half the population, and the city switched from an at-large council to a ward system.

“Section 5 and Section 2 have leveled the playing field, they have transformed electoral politics in the South,” Butterfield said, referring to the section that allows the DOJ, or citizens, to challenge an election law change after the fact for being discriminatory. 

However, bringing those kinds of cases has become more difficult in recent years. 

A 2013 Supreme Court decision, Shelby County v. Holder, invalidated the formula used for preclearance, and without Justice Department preclearance of certain laws, it can take much longer to fix discriminatory changes, Leger Fernandez said.

“Litigation is expensive, litigation is time-consuming. You win in court, then you get appealed and then you get appealed, then it’s ‘Are you going to get [Supreme Court review], are you not?’” she said. “That can take months, that can take years. By that time, an election will have occurred, and those voters will have lost their ability to influence the outcome.”

Leger Fernandez sits on House Administration with Butterfield, who also chairs the panel’s Elections Subcommittee. Leger Fernandez said House leaders have been open to changes proposed by the redistricting attorneys-turned-lawmakers, which include committee member Mary Gay Scanlon, D-Pa.

Scanlon, who coordinated pro bono redistricting work for a national law firm, recounted encountering Democratic opposition to changing redistricting “before I really lost my mind and decided to run” for Congress to help bring real-world perspective.

“I found it frustrating when I would talk with Democratic politicians who were like, ‘Well, no, we’ll just wait till we’re back in power, and then we can do it our way.’ It’s like, no, we want fair play for everyone,” Scanlon said.

Republican opposition

Like the voting and election overhaul that did not advance in the Senate last month, most voting rights bills have lacked Republican support so far. At a House Administration hearing last month, Rep. Bryan Steil, R-Wis., criticized the “ridiculous rhetoric, disinformation and scare tactics” that he said Democrats have deployed around voting issues.

“It’s all part of an effort to convince the American people that the laws being passed by states are so racist or suppressive that the only option is for the great benevolent federal government to take over,” Steil said.

The House passed a similar bill last Congress with a single Republican vote — Rep. Brian Fitzpatrick of Pennsylvania — but then-Senate Majority Leader Mitch McConnell never took it up. This Congress, McConnell has called the measure “unnecessary” and said he would oppose it.

Last Congress’ version of the bill would have reinstated DOJ preclearance of election law changes in many states and expanded the list to include others, such as Florida, New York, North Carolina and California.

Pressure among progressives and civil rights groups has pushed President Joe Biden and Vice President Kamala Harris to act, launching a $25 million expansion of the Democratic National Committee’s “I Will Vote” campaign. Biden cast the effort for a new national voting rights law as “the test of our time” at a July 8 speech in Philadelphia. 

[Biden administration looks for voting rights path around Congress]

At a House Judiciary hearing last month, Rep. Mike Johnson, R-La., echoed Republican criticism of Democratic efforts. He also criticized the Biden administration for suing Georgia over recent GOP-enacted voting restrictions.

Scanlon expressed frustration over the way some Republicans approach changes in voting law, which echo conspiracy theories many voiced about the 2020 election.

“If they truly don’t understand, if they truly think these things are true, I would try to help them get the real information, but my fear is that often they’re just repeating talking points, without really understanding the underlying facts,” Scanlon said. 

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