Improving our democracy through the political process or in federal court is hard, but FairVote is proud to be part of a nascent movement exploring an underutilized tool available for making positive change. That tool is impact litigation brought not in federal court, but in state courts under state law. Today we provide resources for attorneys to use in bringing such litigation, in the form of a new report co-authored with the Campaign Legal Center: Laboratories of Democracy: Strategic electoral impact litigation through state courts.
In 2015, FairVote undertook an ambitious project to identify what reform options have the greatest impact, as well as what reform tactics were the most successful. One tactic we looked into was impact litigation - the strategy of bringing a lawsuit to bring about a positive change in the law. FairVote consulted with several of the nation’s leading election law professors, and one piece of advice received a strong recommendation: do not focus entirely on federal court. State courts and state law provide a fertile ground for bringing impact litigation.
As reform advocates, this strategy resonated with us. Working to improve democracy through the political process has traditionally started at the local level. It makes sense to think locally when it comes to impact litigation too. To follow up on this recommendation, we began research toward a report on how to best bring impact litigation in state courts.
FairVote has served as an amicus party in impact cases before. To name a few, we have successfully promoted the use of fair representation in voting rights cases, we have argued for fairer standards for candidate inclusion in presidential debates, and just last year we argued against gerrymandering and for fair representation in the high profile Gill v. Whitford case in the U.S. Supreme Court. However, we have less experience bringing impact litigation ourselves, and so to ensure that the new report reflected the best expertise, we partnered with the Campaign Legal Center.
The new report begins by making the case for the value of looking to state courts and constitutions. It then provides some starting points for litigants to look for, each with historical background. It ends with notes on how the political process could be used to further open up options for impact litigation, and with strategic considerations. However, all of that makes up less than half of the page count. The appendices contain a wealth of information, including state constitutional provisions and court precedent that will be helpful for aspiring litigants to refer to.
With the recent state court case out of Pennsylvania striking the state’s partisan gerrymander of its congressional districts, this report could not be more timely. The success of that case has grown the profile of state litigation as an option for making positive electoral reform. We are proud to be part of that growing movement.