Election Lawyers

Volume 8 • Issue 2 • January/February 2022
Cover
Main Article Image

Election Law as a Clinical Endeavor

Incubating novel election law theory and practice in law school

By Ruth Greenwood

Clinical legal education has exploded in recent years as more employers have sought students with practical training and students have become eager to start honing their practical legal skills before graduation. In addition, as one admitted student with a depressingly frank attitude shared with me, “democracy law is a growth industry.” We see dire headlines about the state of democracy on a daily basis and, with every year an election year somewhere, she’s not wrong about the increase in election litigation. Given these facts it might seem obvious that a top law school should start an election law clinic. However, traditional methods of clinical legal education emphasize community lawyering, and the problems of election law are not limited to Massachusetts, or even the Northeast. Can an election law clinic really offer students substantive roles in complex federal and state litigation, as well as tackle cutting-edge issues of law and democracy, while remaining true to the clinical model?

My challenge in launching the Election Law Clinic at Harvard Law School (HLS) was to avoid creating a lesser version of a traditional legal services clinic or a fledgling nonprofit voting rights practice. Instead, my goal was to devise an entirely new kind of entity that can both be a training ground for brilliant law students and push the boundaries of how we use the law to improve our democracy. And that is what we have done.

The Takeaway

The mission of the HLS Election Law Clinic is to train the next generation of election lawyers through litigation and advocacy that bring novel academic ideas to the practice of election law. As election spending and legal work increase in the U.S., the Clinic aims to provide law students with the skills and foundations that will allow them to take up election law practice—or any other legal practice—as soon as they graduate.

In this article I discuss the two main concerns I faced in planning the Clinic, explain our early work, and finally put the Clinic into the broader context of the “democracy hub” that now exists at HLS.

Can a clinic advance beyond traditional election law practices?

The first challenge I faced in starting the Election Law Clinic was whether the Clinic could go beyond the traditional nonprofit or law firm pro bono model and be a value-add in the election law space. In my years working at nonprofit voting rights organizations, I came to understand the ecosystem of nonprofits, government attorneys, and law firms that regularly engage in litigation, advocacy, public education, and organizing around issues of democracy. Though funding for these activities has increased in recent years, resources are still relatively scarce. So, it makes sense for practitioners not to engage in redundant work (despite pressure to impress funders and supporters by being involved in every breaking case). There’s little value to representing the ninth plaintiff group in Georgia voting rights litigation, for example, and it’s much better to commit resources to address new democratic problems.

In this carefully balanced world, what could a few experienced election lawyers and a bunch of bright-eyed law students really contribute?

The democracy ecosystem has worked out some basic rules: census citizenship litigation is generally led by the ACLU Voting Rights Project; you don’t litigate voting rights in California or Texas without checking in with the Mexican American Legal Defense and Educational Fund (MALDEF), and if you’re working in Georgia, you coordinate with Fair Fight.

In this carefully balanced world, what could a few experienced election lawyers and a bunch of bright-eyed law students really contribute? The answer was obvious to me: litigation driven by novel academic ideas.

When I started the Whitford and Rucho lawsuits, most national advocates asked me to drop the cases. (A common refrain I often heard: “We just don’t think Justice Kennedy is ready for another partisan gerrymandering suit.” The irony that he is now retired, leaving Justice Brett Kavanaugh as the swing justice before deciding the final crucial case, hits like a cartoon hammer now.) I struggled to raise funds from traditional foundations to run the cases because my “evidence” that the cases could work were two academic articles—one heavy on quantitative political science methods and the other a law review article that could be written off as a pipe dream from the ivory tower. But I persisted, and with the help of a few innovative funders, we launched the cases and eventually #FairMaps, a national campaign advocating for redistricting reform.

At the Election Law Clinic, I have access to creative legal minds who continuously scour the academy for new ideas and convert empirical findings into legal theories.

You won’t be surprised to hear that those two wonky articles aren’t the only brilliant ideas waiting to be discovered in academic journals. Dozens of proposals, particularly in political science, law, and economics articles, could be fruitful avenues for litigation or advocacy seeking systematic democratic reforms. For example, the work of multiple scholars points to something crucial about the timing of elections—the evidence is crystal clear that if you hold non-November elections, people of color turn out at lower rates and get demonstrably worse substantive representation. This literature has led to both an advocacy and litigation project for the Election Law Clinic, which I describe in part three.

Like many practicing attorneys, I often don’t have time to keep up to date on the latest academic offerings. But now that I’m at the Election Law Clinic, I have access to creative legal minds who continuously scour the academy for new ideas and convert empirical findings into legal theories. For example, Professor Nicholas Stephanopoulos wrote that first law review article on a new theory of partisan gerrymandering; Professor Jim Greiner developed a more advanced method of analyzing racially polarized voting using survey data; and Professor Lawrence Lessig has helped the whole country understand the corrupting effects of money in politics. And that’s just at the law school!

The students and professors in the Harvard community continually breathe new life into our plans to make the rules of democracy fairer for everyone.

Crucially, it’s not just the professors who give life to new ideas for the Election Law Clinic; it’s the students too. Mike Wishnie of Yale Law School previously told The Practice how his students, free from the prevailing wisdom of years of practice, had a novel idea for how to contest the cancellation of Deferred Action for Childhood Arrivals. Wishnie’s clinic ran with the students’ idea—over the advice of experienced attorneys—and was ultimately successful. Similarly, in the short time the Election Law Clinic has been operating, we’ve had a student identify a new argument based on the wording of a state constitution—a point an experienced state practitioner couldn’t believe he’d never thought of. Another student used her interest in immigration law to develop a joint project with the Crimmigration Clinic to provide better service to her clients than either clinic could offer alone. A final student, upon hearing my concerns about the undercount of minority communities in the last census, connected me with a computer science professor, Cynthia Dwork, who has similar worries. We then teamed up with a government professor, Gary King, to start a project to improve census accuracy.

So far, the Election Law Clinic has been as exciting and innovative as I had hoped. The students and professors in the Harvard community continually breathe new life into our plans to make the rules of democracy fairer for everyone.

Remembering Professor Lani Guinier

Before we can choose which work to take on, the Election Law Clinic needs a vision of a functioning democracy. That’s why I have all students read the work of Harvard Law School professor Lani Guinier when they join the Clinic. Back in the 1990s, when election law wasn’t even a law school subject, Professor Guinier recognized the importance of minority descriptive and substantive representation to a functioning democracy. She believed democracy wasn’t just about majoritarianism; it was about protecting the vulnerable, the historically disenfranchised. Professor Guinier was a promoter of alternate election systems like cumulative and ranked-choice voting to get away from first-past-the-post that often left people of color behind. She was about thinking beyond the conventional wisdom to find new ways to improve American democracy.

Professor Guinier wasn’t only a visionary academic. She also litigated some of the earliest and most important cases seeking minority representation under Section 2 of the Voting Rights Act while she worked at the NAACP Legal Defense and Educational Fund.

Even after her passing, her life and work will always be an inspiration to students of the Election Law Clinic, which is why we are so proud to join Professor David B. Wilkins in dedicating this issue of The Practice to Professor Guinier. 

Is election law a proper subject for a clinic?

The second issue I had to confront in starting the Clinic was whether election law could really be a vehicle for teaching students the substance, procedure, and skills of real legal practice. As clinical legal education has expanded over the last 20 years, no law school has established an in-house clinic entirely devoted to election law. There have only been a few adjacent options:

  • Some clinics that focus on other topics have taken on a case or two in the voting rights space, such as the Peter Gruber Rule of Law Clinic at Yale (though this is no longer active) and the Civil Rights Clinic at Georgetown.
  • Ph.D. students and law students at UCLA can participate in the Voting Rights Policy and Practice course, housed at the Luskin School of Public Affairs, which relies on experienced lawyers to formally appear in litigation.
  • A number of law schools offer externships, including Harvard’s Democracy and the Rule of Law Clinic, where students assist democracy lawyers in nonprofit voting rights practices as they engage in litigation and advocacy.

Why had no law school started a full-time, in-house election law clinic? When I chatted with various experienced clinicians, two issues were generally perceived as obstacles: the community lawyering model and the locations of clients. I explain below how I thought about these issues not as obstacles but simply as parameters to take into account in designing a clinic that would benefit students, the communities they work with, and the jurisprudence of election law.

Community versus movement lawyering

The traditional clinical model has been based on community lawyering—integrating lawyers into the community they serve, using multifaceted approaches to problem solving, and empowering community members in the process. But an election law practice is better understood as movement lawyering or, what is seen as a dirty term in clinical practice, impact litigation. Rather than embed themselves in a particular geographical area, many election lawyers scour the country to use their particular skills to enfranchise communities, wherever they are affected. Though I appreciate the importance of community lawyering in many cases, in election law, I think the movement lawyering approach is justified.

Since 1885, the U.S. Supreme Court has recognized that the right to vote is fundamental because it is “preservative of all rights.” If you set up a fair electoral system, then community organizing and public policy campaigns can lead to real change. On the other hand, as long as the system allows counter-majoritarian outcomes, you can have the greatest viral campaign in the world and not a line of legislation will change. As Michael Li of the Brennan Center likes to remind us, “You can’t ‘out organize’ gerrymandering.”

This doesn’t mean election lawyers should ignore communities and organizers. The point, instead, is that sometimes a group won’t have access to the legal tools they need to unstack the deck against them so that they can change particular policies. Every time I have analyzed election and census data and found a jurisdiction where something seems fishy, when I speak to people on the ground, they are acutely aware that they aren’t achieving the changes they want. But they often feel like they’re out of options for moving the policy needle.

With community groups that want to build their power, I like to discuss the strategies we can use to improve elections and solicit their views on which electoral practices are holding them back. Sometimes there is a minority community that needs districts redrawn to allow them to elect a candidate of their choice. Sometimes holding an election in April in a college town when students must leave their dorms means young people don’t get a say in local elections. And sometimes the evidence is more sinister: canceling voting on a Sunday, where there is a tradition of Black churches engaging in “Souls to the Polls” to help community members access polling places, is obviously intentional discrimination.

In 2014, I met with a community group in Milwaukee that opposed partisan gerrymandering. That first meeting eventually led to a U.S. Supreme Court case.

In the Election Law Clinic, my students learn the tactics available to us as election lawyers. The students can then either respond to requests that come to us or go into communities we have identified as potentially having problems to talk about possible structural changes to elections. In both cases the students get to work with communities to propose possible courses of action: litigation, advocacy, public education campaigns, and so on. As lawyers we can take on some of those tasks ourselves (litigation!). We’re also able to reach out to a network of democracy activists to notify a particular group or person that their, say, public education skills are needed and arrange for them to bring resources to the affected community.

As an example, I was referred to an enthusiastic community group in western Oregon who wanted to know more about ranked-choice voting and whether it could help them build power in local elections. I joined many Zoom meetings with the group to explain the legal side of things, but ultimately it became clear that they needed people familiar with campaigns to adopt and implement new voting systems. So, I put them in touch with Democracy Rising, which does just that. In another case, back in 2014, I met with a community group in Milwaukee that opposed partisan gerrymandering to discuss what they might do about it. That first meeting eventually led to the U.S. Supreme Court case of Gill v. Whitford.

While the Election Law Clinic does not engage in community lawyering, we do work with groups to find structural ways to improve the lives of marginalized individuals.

Clients scattered across the United States

The second aspect of traditional clinical practice that we can’t include in the Election Law Clinic is close physical contact with all our clients. Our clients don’t come by a drop-in clinic. They (mostly) are located a long drive or flight away from us. So, how can students get a genuine experience interacting with clients? The answer has more to do with modern technology (and perhaps the impacts of the COVID pandemic on how we all do work) than election law as a field.

Being geographically distant highlights what all lawyers should know: nothing in legal training teaches you how to be a good organizer.

Before I joined clinical practice, I worked for 10 years in election law and policy and rarely had clients close enough to me for regular in-person visits. Prior to the pandemic, if I was launching litigation, I would usually meet clients face-to-face at least once before filing a suit on their behalf. I’d then have a few intense hours or days with them before depositions or trial testimony, and in some cases we might all get together for an end-of-trial or post–Supreme Court argument dinner. For many of my clients, that means I’ve met them in person a handful of times over multiple years of litigation. I still have former clients in Arkansas, North Dakota, Florida, Oregon, and elsewhere whom I’ve never met, and dozens of community groups with whom I’ve interacted only electronically. I don’t think their representation has suffered for lack of a handshake with me. Indeed, I have formed close bonds with some former clients: we are friends on social media and “like” each other’s posts, message and text each other—and even send holiday cards and get updates on (and send gifts to) our children. I put journalists in touch with them years after litigation has ended.

Thus far in the Clinic, my students have started forming the same bonds with our new clients that I formed with my earlier ones. The students get to know the clients over Zoom and phone calls, sometimes one-on-one, sometimes in a group setting. They text meeting reminders or GIFs the students know will put a smile on a particular client’s face. When we are allowed post-COVID travel, we will all go out on trips together to meet and prepare clients for their roles in litigation. These sorts of interactions—often through online mediums—have been a central part of my practice and experiences as an election lawyer, and understanding how to operate and form trusting relationships in these ways is critical for aspiring election lawyers.

Almost every piece of election law litigation also needs on-the-ground organizing and some sort of media management. Being geographically distant highlights what all lawyers should know: nothing in legal training teaches you how to be a good organizer. In fact, we can often be better lawyers if we learn how to work with an organizer and a media relations specialist, rather than trying to cover too many bases ourselves. There has been only one time in my career when I’ve found a community with an election law problem for which I couldn’t find any people or resources to help them organize. I didn’t proceed to litigation there because without organizers, any changes I could make in the courts would be useless given the lack of on-the-ground implementation. That’s the model our clinic follows.

Student Voice: Tyler Price ’23

A young Black man wearing a blazer and button-down blue shirt smiles against the Harvard Yard backdrop. He has glasses and some facial hair. Trees dot the landscape behind him.What was the experience of being in the Election Law Clinic like for you?

My time in the Election Law Clinic (ELC) far surpassed my expectations. I was given vast ownership over a variety of projects and learned about litigation through hands-on experience. Not only was I given substantive writing opportunities, but I was also given the responsibility to make key decisions in our litigation strategies. While I was assigned challenging projects that often seemed daunting, the ELC team acted as a safety net and support system in a way that made me never afraid to step out of my comfort zone to learn. My time at the Election Law Clinic is the highlight of my law school career thus far, and it has been an invaluable opportunity!

What advice would you give a student considering enrolling in the Clinic?

The advice I would give is twofold. First, be prepared to step out of your comfort zone. The ELC team will trust you with responsibilities that you may not have experienced before. While this may seem intimidating, the growth that will come from it will be pivotal. You will have the chance to experience voting rights litigation and advocacy firsthand, with the careful guidance of the ELC team behind you. Second, believe in yourself. The ELC team chose you because they believe that you have the skills to do the work, and they are always here to support you. The Election Law Clinic was incredibly formative for me as a future lawyer, and I cannot recommend it enough!

Student Voice: Mary Samson ’22

A young white woman with blonde hair smiles against a white background; her head is cocked to the side and she wears a white button down shirt and black blazer.What was the experience of being in the Election Law Clinic like for you?

It is incredibly invigorating to be in a room full of people who want to fight for a more just electoral system, and it is empowering to be trusted, alongside your fellow students, with making strategic decisions on how to best do that. I felt like a full-fledged member of the litigation team—encouraged to share my ideas and challenged to be a better advocate every day. And most importantly, I felt like the work I was doing supported our democracy. Suffice to say, the Election Law Clinic has been my favorite thing I’ve done in law school.

What advice would you give a student considering enrolling in the Clinic?

I would tell any student considering enrolling in the Election Law Clinic to go for it—and to put it first on your clinic bid list! Election law provides a unique opportunity to help build power within communities. To do that kind of work at the first in-house election law clinic in the country is, in my opinion, an experience without equal. And I think any law student, whether pursuing a career in election law or not, can benefit from the training as an impact litigator we receive at the Clinic. The instructors are phenomenal, and I have seen my oral advocacy and writing skills markedly improve.

The work so far

As I’ve outlined, at the Election Law Clinic we are trying to reform democracy and build power for historically marginalized communities by utilizing novel academic ideas. Rather than rush to take on high-profile cases—such as when Georgia banned giving water to voters waiting in line (a policy the existing voting rights ecosystem is well-equipped to challenge)—we are, largely, building cases that will have a longer timeline and hopefully broader effects. In addition, we are seeking to inject ideas, methods, and empirical evidence from the academy into cases that could benefit from this information through amicus briefs at all levels of litigation. Inevitably, from time to time a community partner will need quick legal help with a more straightforward matter, and we will jump in to help, because it’s the right thing to do.

We have taken these actions in our first six months:

  • Prepared to file a first-of-its-kind case alleging that holding non-November municipal elections violates Section 2 of the Voting Rights Act because the policy disproportionately reduces minority turnout.
  • Filed four amicus briefs:
  • Submitted a formal request to the Census Bureau with Harvard professors Cynthia Dwork and Gary King for additional data aimed at producing better uncertainty measurements with respect to the count of communities of color in particular
  • Started a cross-clinic collaboration project with the Cyberlaw Clinic to find ways to address the destructive influence of social media companies on democracy

And our work in response to community requests includes:

  • Filing and winning a case against Governor DeSantis in Florida. DeSantis failed to call elections in three majority-Black districts in southern Florida (while he had previously set dates quickly for elections in majority-white districts). Within two weeks of our filing, DeSantis set election dates so that the people in those districts will have representation in the 2022 legislative session.
  • Providing legal and policy advice to La Colaborativa, a democracy hub based in Chelsea, Massachusetts, that seeks to empower Latinx immigrants, in a joint project with students from the HLS Crimmigration Clinic

We have multiple additional cases in the research phase, and we look forward to sharing the actions that we take in the Spring 2022 semester.

Choosing the right people

A white woman with short curly hair that falls above her forehead stares directly at the camera. She wears a black blazer over a striped top.Choosing a clinical supervisor is a delicate task. You want someone who is a brilliant practitioner but also humble enough to give all the flashy roles (depositions, oral arguments, brief drafting, and so on) to the students so that they can learn from hands-on experience. We lucked out at the Election Law Clinic in hiring an amazing litigation director: Theresa Lee.

Theresa comes to the Clinic as a veteran voting-rights litigator who also taught in another clinic for a year after law school. She knows how to manage a litigation team, she’s done every role in trial and appellate work from seemingly unsexy document review to appellate arguments, and she is ready to let the students shine.

Theresa is managing our case on election timing. In the fall she worked with a team of six students to conduct research and review data and expert analysis from across the country, engage in outreach to activists on the ground, and guide her students through all that it takes to start up a case: retaining clients, checking conflicts, working with experts, drafting a complaint, and preparing for a motion to dismiss and discovery.

A hub for election law

Over the last few years, Harvard Law School has become a hub for democracy and election law. Historically HLS has been the home to democracy giants like professors Lani Guinier and Lawrence Lessig, and new full-time professors Nicholas Stephanopoulos and Guy-Uriel Charles (see “Polling the Election Lawyers” for more on Professor Charles), along with launching the Election Law Clinic. Students can take classes and seminars on election law, critical race theory, constitutional structure and rights, and the Election Law Clinic itself. It also opens up wider opportunities for students to engage with exciting projects, such as Professor Charles’s Charles Hamilton Houston Institute for Race and Justice, Professor Lessig’s nonprofit Equal Citizens, or Professor Stephanopoulos’s Law and Politics Workshop. The latter has introduced law students to some of the innovative political scientists on the Harvard campus— most recently Professor Maya Sen explained her work on court reform, and Professor Ryan Enos shared his latest technique for analyzing spatial political patterns.

In 2019 a group of enterprising law students founded the Equal Democracy Project, through which students not only learn about the democracy space but also volunteer their time to help on local and national causes. The group has been so successful that it’s now starting chapters at other law schools. The Equal Democracy Project has a program of speakers and events where students can learn and talk about key issues in democracy. Building on this work, in academic year 2021–2022 the Election Law Clinic has hosted a six-part Democracy Forum, open to all HLS students, staff, and alumni, covering issues such as the For the People Act, social media and democracy, and redistricting from both Republican and Democratic perspectives.

One admitted student asked me why she should attend Harvard, and my reply was easy: “If it’s election law and practice you’re interested in, we’re the only game in town.”

Harvard students also get a chance to attend events, work with students, or learn from faculty, across the Harvard universe. The Ash Center for Democratic Governance and Innovation is run through the Kennedy School and offers a robust event schedule. The Algorithm-Assisted Redistricting Methodology (ALARM) Project, run by Professor Kosuke Imai of the Government Department, is assigning a predoctoral fellow to be embedded within the Election Law Clinic for a semester so that students can practice working with a quantitative methods expert. And, as I mentioned above, the Clinic is working with two professors from the Harvard Data Science Initiative on a project to improve census data accuracy.

One admitted student asked me why she should attend Harvard over any other law school, and my reply was easy: “If it’s election law and practice you’re interested in, we’re the only game in town.”

Oh, the places they'll go!

An early concern about the Election Law Clinic was that we would produce too many election lawyers and increase the volume of election-related litigation. While it’s true that election litigation has been increasing in recent years (and likely will do so, with or without the Clinic), I also assured the critic that we encourage our students to think about all the different ways they might contribute to election law beyond litigation. I also explained that plenty of students will use the Clinic to learn some great legal skills and never return to election law, and that’s fine too. During the semesters, we have regular Zoom visits from various practitioners in the field (some of whom are profiled in this issue) to help students envision different paths for their careers.

The many roles and offices in which a person with legal training might be involved with elections and election law include:

  • Election officials, such as county clerk or supervisor of elections office
  • Attorneys for federal, state, or local government, such as the DOJ Voting Rights Section, Secretary of State office, or Corporation Counsel office
  • Law firms—for example, taking the occasional pro bono election law case or joining a full-time political law practice
  • State or federal legislative offices, such as staffer for a committee or member who has a democracy portfolio
  • Journalists, such as democracy reporter for print, digital, video, or podcast media
  • Social media content moderator
  • Nonprofit attorney for a democracy-focused group or a group focused on another issue that has a democracy specialist

What’s next

In this article, I have tried to explain how we plan to train students, serve communities, and bring the best academic ideas to bear on the pressing issues of democracy. And as proud as we are of what we have done thus far to launch the Election Law Clinic at Harvard Law School, I am most excited for what’s to come. So, this is an open invitation to stay in touch and stay engaged with the work we are doing. We’re also always on the lookout for new collaborations and ways to improve. We could not do any of this without the continued engagement of law students, lawyers, academics, policymakers, and communities and individuals interested in these topics. We need your very best ideas; your resources, large and small; and, most important, your time to engage with us, our students, and our work as we train the next generation of election lawyers through litigation and advocacy and bring novel academic ideas to the practice of election law. If you want to help shape our work going forward, please reach out: www.hlselectionlaw.org.

 


Ruth Greenwood is the founding director of the Election Law Clinic at Harvard Law School. She was previously the Co-Director of Voting Rights and Redistricting at the Campaign Legal Center, Lead Counsel for Voting Rights at the Chicago Lawyers’ Committee for Civil Rights Under Law, and a Redistricting Fellow with the Democratic National Committee’s Voting Rights Institute. 

1 2 3 Single Page

Election Lawyers Volume 8 • Issue 2 • January/February 2022

Cover