Coalition of lawyers successfully challenge House redistricting plan

Issue April 2004 By Andrea Barter, Esq.

On Feb. 24, 2004, a three-judge federal court panel delivered a victory to a coalition of Boston attorneys and interest groups coordinated to challenge the 2001 House redistricting plan for Boston.

The opinion ordered Massachusetts House leaders to redraw the Boston legislative map, determining that the redistricting plan crafted by House Speaker Thomas M. Finneran and his lieutenants was designed to protect their own political futures at the expense of black and Hispanic voters' constitutional rights.

The enacted Massachusetts House redistricting plan increased the number of Boston House districts where whites outnumber blacks and Hispanics, even though new U.S. Census figures show Boston has, for the first time, become a "minority-majority" city, where people of color outnumber whites.

A litigation team coordinated largely by the Lawyers' Committee for Civil Rights Under the Law and it senior counsel, Nadine Cohen, and led by attorneys from Foley Hoag LLP tackled this complex and controversial case.

Pro bono service

The right to vote has been called the "crown jewel" of American liberties, and the Lawyers' Committee for Civil Rights Under Law has actively worked to enhance this right since the mid-1970s.

Formed in 1968, the committee is a private, nonprofit, nonpartisan legal organization that provides pro bono legal representation to victims of discrimination based on race or national origin. The committee's mission is to provide a safeguard for the civil, social and economic liberties of residents in Greater Boston and throughout Massachusetts.

A unique feature of the committee is its relationship with more than 30 of Boston's major law firms. These private law firms fund more than 55 percent of the committee's annual operating expenses and provide millions of dollars in pro bono legal services by representing the committee's clients as co-counsel.

Committee staff members identify cases and then team up with attorneys from member firms for litigation or otherwise bring cases and projects to resolution. For 35 years, the committee has, in this way, made the resources of Boston's major law firms available to secure the civil rights of area residents, particularly to those who are poor.

Relying on experience

The redistricting case "is a huge victory for the voters of Boston" that will change the political landscape in Boston for years to come, according to Cohen. "If the legislature follows the court's decision and redraws the district lines as they should, people of color will have a real equal opportunity to participate in the political process and elect representatives of their choice."

According to Cohen, the committee has been involved in most of Boston's redistricting issues over the last 20 or 30 years, successfully challenging state and municipal voting district plans under the constitutional principle of "one person, one vote" as well as under Section 2 of the Voting Rights Act.

After the House redistricting plan was announced, Cohen drew on committee resources to organize a litigation team to contest the plan. The committee works with member and affiliate firms, coordinating litigation efforts to most effectively use the resources of large firms to resolve cases.

In this instance, Foley Hoag LLP, a member law firm of the Lawyers' Committee, contributed significant pro bono efforts.

"Without Foley Hoag resources, we could never have succeeded in a case of this magnitude," Cohen said. "Foley Hoag willingly gave of their time and resources and we are deeply appreciative of their efforts on the case. It shows that when public interest organizations and law firms combine expertise and work together, we can really achieve important victories."

Coordinating resources

This case required a showing by the coalition that the legislature drew the lines in such a way as to dilute minority voting strengths. Under the Voting Rights Act, they did not have to show blatant discrimination, only that the final plan had a discriminatory effect.

Plaintiffs had to establish three preconditions: there exists an achievable remedy that would make a difference; there is cohesive minority voting; and white bloc voting generally defeats the choice of the minority.

A team approach to lawyering in such a case made it easy to divide up the work. Some of the attorneys had more experience or contacts with expert witnesses and others were more tied to community and elected officials. Election experts on the team had experience with regression analysis and used it to demonstrate the results of elections with different district lines.

This was a collaborative effort. Although Cohen credits much of this success to the hard work of Foley Hoag attorneys and others, each of those attorneys credits Cohen for her outstanding efforts, particularly in coordinating clients and arranging fact witnesses.

"This was not a case where the Lawyers' Committee just referred it to us and then disappeared," said Richard Benka of Foley Hoag. "Nadine Cohen was involved with the case and did a number of depositions and was active in it."

Benka used his background in public policy and economics, as well as his interest in math and statistics to examine the experts in the case. He is credited with mastering the nuances of the regression analyses and focusing on the remedy.

Dick Belin, of Foley Hoag, examined the political witnesses, such as Speaker Thomas M. Finneran and Representative Thomas M. Petrolati.

Burton Nadler, an election law expert with Petrucelly & Nadler, has previous experience and contacts with minority candidates and a number of community groups. His expertise helped those witnesses prepare for depositions and trial.

Several attorneys involved in this project commented on the exceptional work of the most junior member of the team, Anne Sturman, a Foley Hoag associate. Her attention to detail and willingness to perform a lot of the "nitty-gritty work" earned her the opportunity at trial to examine the mapping expert.

Gerrymandering defense

This legal juggernaut was successfully used to combat the defense's argument: political gerrymandering was not illegal in Massachusetts. According to the defense, drawing districts to protect incumbents, of any race, is as old as the country itself and though distasteful to many, it is legal unless a state forbids it. Massachusetts does not.

Nadler predicts this victory will be critical to any future discussions about racial and political gerrymandering. According to Nadler, this opinion establishes that legislatures "cannot diminish the number of majority black districts by solely saying that it's protecting incumbency even though protecting incumbency is not illegal. If protection of incumbency results in the dilution of voting power of African-Americans, then it's illegal."

David Harris, executive director of the Lawyers' Committee, said, "The court makes it clear that it is totally impermissible to disenfranchise communities of color, to dilute their opportunity to elect candidates of their choice, under the pretext of protecting incumbency. One would think that, after being sued so many times, this legislature would get the message that its prerogative to draw lines does not supercede federal statutory and constitutional requirements."

Personal rewards

In addition to the very public victory for voters' rights and communities of color, the attorneys involved in this action received personal rewards.

Belin found his participation very rewarding because his father, who died last April, was one of the founders of the Lawyers' Committee. The committee was "one of the things he felt best about. I think he would have been happy to see what the Lawyers' Committee and Foley Hoag were able to accomplish."

Sterman believes she "got a real education in the history of Boston race relations and politics," as well as a "crash course in managing and shepherding a major piece of litigation from start to finish in under two years."

Sterman fully endorses pro bono work. She enjoyed working with the Lawyers' Committee and getting involved with the minority community. "Besides getting to help clients who might not otherwise get help, pro bono work is also a really good way for more junior associates to take on more responsibility and perhaps get more hands-on experience than they may otherwise get at a larger law firm."

Nadler praises the Lawyers' Committee. "If it were not for groups like the Lawyers' Committee, I hesitate to think how difficult it would be for many people in the city of Boston to have their rights protected."

Cohen credits the support and commitment of Lawyers' Committee member firms, which allow the committee "to be as effective as we are as a civil rights organization. People who do these pro bono effort should be recognized."

And, Cohen suggestively adds, "We have many more cases for other firms who may be interested!"