Election Law as a Clinical Endeavor - The Practice

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 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.

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.

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!

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.

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.

source: https://thepractice.law.harvard.edu/article/election-law-as-a-clinical-endeavor/

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