Public interest litigation plays an important role in enacting and influencing reform, albeit imperfect and oftentimes unsuccessful. As an undoubtedly necessary strategy within the legal framework of our democratic society, attorneys can improve its effectiveness in order to better embolden and strengthen social reformers. To do this, public interest attorneys must reassert their focus to the theoretical and practical insights into such a strategy.
FairVote is currently conducting an audit of state constitutions and courtroom strategies. This project pertains to systemic rules within the realm of electoral systems as a means of influencing change, or structural electoral reform. Attorneys who litigate on behalf of individuals or organizations seeking to influence structural electoral reform are tasked with assessing whether their client’s theory of law is likely to succeed in a particular venue. Thus, this audit focuses on litigation based on likely successful tactics for pushing electoral reform.
Key Assessment Points by FairVote
In 2015, FairVote undertook a project for the purpose of identifying the most impactful electoral reform options, as well as effective tactics for actually bringing about reform. One part of that project sought to identify when litigation can be effective for achieving reform to electoral systems. FairVote consulted with a team of scholars, including several of the nation’s leading election law professors, in order to identify the most important conditions to improve the likelihood of favorable litigation.
Based on FairVote’s work, along with the help of this team of scholars, three courses for short-term action were recommended, including:
- Getting a clear understanding of state constitutional provisions, judicial philosophies, and election law rulings in all 50 states - looking specifically for openings for structural electoral reform.
- A standing team of legal experts who can provide rapid response analyses of pending rulings and serve as a screening committee to gauge the feasibility of structural reform test cases.
- Exploration of test cases on three areas: sore loser laws, fair voting methods as Voting Rights Act remedies, and ballot access.
FairVote this year will release a document attempting to collect the most important information relevant to the first item on this list, and to make that information available in a usable way for attorneys interested in pursuing structural electoral reform through litigation.
The focus on state courts will be designed to allow for more innovative legal theories due to the greater variety of state courts and state constitutions. Although most theories pursued in state court may dovetail into federal law theories, they can make use of state venues to first establish their credibility as well as persuasive precedent. Our guide will focus on state litigation tactics rather than any particular legal theory. As such, it will focus on four categories of structural reform as examples. Two will come from common sources of litigation at all levels, and thus serve as useful examples: redistricting and litigation regarding a change in primary election methods. The other two will come from the legal scholars’ recommendations for test cases: sore loser laws and ballot access reform.
The guide will assess state constitutional provisions that would make favorable outcomes more likely in state courts. Although many such provisions exist, it will focus on state constitutional right to vote and equal protection, providing examples of such provisions in past case law, and detailing how they differ from their federal counterparts. It will stress that attorneys for challengers of restrictive election laws should make the following foundational arguments to the courts: (1) the state constitution protects the right of people to cast meaningful votes, and (2) the state court should not exclusively rely on federal interpretative methods when applying its state constitutional provisions.
The guide will also focus on how attorneys could adequately assess whether a particular state venue is receptive to their client and theory of law. This demonstrates how to determine ideological differences between state judges, how to assess past case law indicating how a judge is likely to rule on that particular matter, and how to tell whether a bench may be receptive to remedying state law or practices that restrict voters through, for instance, ballot access laws or redistricting plans; a case law study will accompany this bench audit.
This report builds on years of work by FairVote staffers, fellows, and interns. We want to give special credit to our group of independent legal scholars who are acting as advisors to this project:
- Michael Kang, Emory University
- Steven Mulroy, University of Memphis
- Nicholas Stephanopoulos, University of Chicago
- Daniel Tokaji, Ohio State University
- Alan Morrison, George Washington Law School
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