David Gersch resigned from the partnership at Arnold & Porter Kaye Scholer in 2012 to become senior counsel so he could have the freedom to pursue the matters he wanted. Last year, that decision allowed him to work on a case that could help shape electoral politics in the United States for the foreseeable future.
Gersch and partner Stanton Jones, both based in the firm’s Washington, D.C., office, were two of the many Big Law attorneys who took on cases in 2017 that sought to undo the effects of the gerrymandering that has left so many Americans squeezed into strangely shaped voting districts. The duo represented the League of Women Voters in a lawsuit challenging Pennsylvania’s congressional map. Not only did they secure a ruling from the Pennsylvania Supreme Court in January enjoining the old map, they also did it in time for the court to draw a new map that went into effect for this spring’s primary election. In a state with an all-male congressional delegation, seven Democratic women won House primaries and at least one woman is now guaranteed to break into the group.
“It’s like democracy in action,” Jones says. “It’s like seeing the system unrigged.”
In recent years, as new mapping technology has developed, gerrymandering has “grown from an obscure legal issue to a cause celebre,” Jones says. Districts have gotten so bad that Pennsylvania’s 7th earned the moniker “Goofy kicking Donald Duck” because of its bizarre shape.
“Gerrymandering’s been around since Elbridge Gerry, but the use of technology, computers and the lack of restraint by partisan forces has made the problem worse than ever,” Gersch says.
And in 2017, law firms stepped up to try to fix the problem with their pro bono work. In addition to Arnold & Porter’s work in Pennsylvania, Patterson Belknap Webb & Tyler represented the plaintiffs in a lawsuit challenging North Carolina’s 2016 congressional redistricting plan, securing a court order for a new map that was later stayed by the U.S. Supreme Court. Meanwhile, Hogan Lovells and Milbank, Tweed, Hadley & McCloy each filed amicus briefs with the high court in Gill v. Whitford, the closely watched gerrymandering case out of Wisconsin on which the justices were expected to rule in June.
For Stanton, watching the individual plaintiffs in the Pennsylvania case testify—including a former Army helicopter pilot who is now a high school civics teacher—was an eye-opening experience that made clear the thousands of hours and significant cost Arnold & Porter invested in the case were worth it.
“It blew me away,” he says, “to hear how deeply they care about this issue of democratic representation and participation in free and fair elections.”
Stanton and Gersch hope their case—argued in state court, as opposed to the usual route through federal court that has encountered more roadblocks in the past—will provide a road map for future gerrymandering challenges. And if it leads lawmakers to be a bit less bold in their partisan redistricting, all the better.
“The idea that you can challenge gerrymandering in court, it’s an idea whose time has come,” Gersch says.