“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.”
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, North Carolina, tried to annex a nearby town. Section 5 allows the Justice Department 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 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 the House Administration Committee 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.