Published March 31st, 2021

Elie Honig:

Hey, everybody. As many of you know, each Friday on The Third Degree Podcast, I speak with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases, and what it means to lead a life in the law. These episodes are part of the CAFE Insider membership. Insiders get exclusive content, including a weekly podcast, hosted by Preet Bharara and Anne Milgram, audio notes from contributors, including me, and bonus content from Stay Tuned and Doing Justice. You can now become a member for half the annual membership price, just head to Cafe.com/Insider and enter the special code, degree. That’s Cafe.com/Insider, and the discount code is degree. And now onto the show. From CAFE, this is Third Degree. I’m Elie Honig.

It is now a misdemeanor in Georgia to give food or water to people who wait on line to vote. That’s right. You can get arrested. You can get handcuffed. You can spend time behind bars, if you pass out granola bars and bottled water to people who are waiting to exercise the most basic right of our democracy. You probably know this. It’s been in the headlines as probably the most glaringly obvious example of the real intent behind the new Georgia state law that makes it harder, sometimes much harder for people to vote. It’s such a nonsensical rule too with zero possible impact on the purported purposes of this law, which is to root out voter fraud. I mean, are hungry voters less likely to commit fraud. And as my friend, Dan Goldman, pointed out on Twitter recently, this’ll probably even backfire because it lays bare the real intent here, which is to suppress votes.

Indeed, this no food, no water rule has played disastrously in the public sphere. Even Senator Lindsey Graham, yes, Lindsey Graham has said he doesn’t see the point. And by the way, it won’t play well in court. We’ll talk about that more in a bit. And yes, it’s every bit as crazy as it sounds, but know this at least, no sensible ethical cop or prosecutor would ever actually make an arrest or authorize a charge for this. Can you imagine? I mean, I’m just thinking of a police officer coming to me when I was a prosecutor and saying, we’d like to take this man into custody.

He was handing out bags of peanut butter crackers to voters. But notice I did slip in some important qualifiers, sensible and ethical. The vast majority of all cops and prosecutors are both of those things, but not all. And we’ll see if any in Georgia are ridiculous enough to actually enforce this thing. If they do, expect to see major protests. I use that food and water provision of the law as an entry point. But the new Georgia law is also about so much more than that. And it has many people wondering is there that can be done to stop this Georgia law and others around the country that are likely to follow? So let’s break that down.

First of all, this law and many others that are now making their way through state legislatures are yet another destructive result of the big lie, the ridiculous notion that Donald Trump somehow really won the election, that it was rigged, that it was fraud, et cetera. We know that’s utter crap. I’m just not going to waste any time further disproving it. And it’s really wild to step back and think of all the damage this big lie has done, undermining confidence in our democracy, dozens of outrageous lawsuits filed in courts trying to overturn the election, the January sixth Capitol riot with its death and destruction, and now as a justification for a potentially permanent wide-scale rollback of voting rights. All because one man’s uncontrollable ego couldn’t take a loss and all because that man and his supporters tried to defy the constitution and hold onto power that they had rightly lost.

So here’s what the new Georgia law does specifically, among other things. First of all, it transfers power from local county officials to largely Republican controlled state level officials. Second, it requires voters to submit driver’s license or other ID as part of their vote by mail application. That is going to seriously complicate vote by mail. It also allows individual Georgia citizens to file an unlimited number of challenges to the eligibility of other voters, basically increasing the number of opportunities for the newly centralized election authority at the state level to challenge potentially disqualify Democrats, and it puts these new limitations on ballot dropboxes. big picture, the law creates barriers to voting that are most likely to affect voters who don’t have the time and the resources to navigate them. In Georgia, as in many places, it’s going to primarily impact low income and minority voters, two groups that just so happened to vote disproportionately democratic.

So what can be done to stop the Georgia law and dozens of others like it that are working their way through Republican controlled state legislatures around the country to draw back voting rights? That brings us to the next player here, the US Congress. Now under our US constitution, it’s generally up to the states to determine the manner of voting. That’s why we’ve seen so much variation state by state on things like early voting, mail-in voting, et cetera. But the constitution gives Congress a trump card, no pun intended. It gives Congress the ability to override the states. Now Congress rarely exercises this power, but it’s trying to do that now with something called HR1. HR1 is a bill. It’s a proposed law. If it passes, it would create a new national automatic voter registration system that would require voters to opt out rather than opt in.

That would lead to a lot more people being registered. It would require at least 15 consecutive days of early voting for federal elections. And it would prohibit states from restricting a person’s ability to vote by mail. Now, HR1 has already passed the House by a 220 to 210 vote. It was nearly a straight party line vote. One Democrat voted no. Two Republicans did not vote at all. So onto the Senate. Easygoing right? Democrats have the majority. It’s 50 50, but they have the breaker through the vice president. The problem of course is the filibuster. This is an internal Senate rule saying that any member can block a bill by promising to filibuster. In the old days, you had to actually get up and talk. The famous example is Jimmy Stewart in the movie, Mr. Smith goes to Washington.

Jimmy Stewart:

I will not yield!

Elie Honig:

The better example to me is Amy Poehler playing Leslie Knope in roller skates on the TV show, Parks and Rec.

Amy Poehler:

I will not yield nor will I yield for the rest of the evening.

Elie Honig:

Now the Senate has gone soft. You don’t have to stand up and read. All you have to do is say you intend to filibuster. And if that happens, then it takes 60, 60 votes to overcome. So in essence, you would need all 50 Democrats plus 10 Republicans. That ain’t going to happen. It’s not even clear all 50 Democrats are on board. So there’s now talk of suspending or changing the filibuster rule. I’m going to tell you straight up, that’s a tough putt. Prominent defendants, including Joe Biden himself, have long been against changing the filibuster. And once you get rid of the filibuster, it’s gone. Both ways just as Democrats might benefit now, they’ll certainly regret it if and when they’re in the minority again. Now there are proposed revisions saying, well, let’s not get rid of it. Let’s just change it. But that’s really a thin distinction.

People are saying, well, maybe we abolish the filibuster, but only for voting rights and civil rights. Well, guess what happens when the Republicans become the majority and they will again someday. They’ll do the same thing. They’ll say, well, we’re going to suspend the filibuster for the issues that we care about the most. People who understand Congress well seem frankly skeptical, at best, that this thing will pass the Senate as is. Could it be revised and maybe when more of a consensus? Perhaps. If it does not, then there’s only one other way to challenge the Georgia law and others like it, and that is through the courts. So let’s talk about lawsuits. President Biden said the other day that DOJ is taking a look at the Georgia situation. What does that mean? That means DOJ is gathering evidence and data and assessing the law. And they could well decide to challenge the Georgia law and others like it in federal court.

By the way, even if DOJ decides against filing a lawsuit, somebody else will surely file a legal challenge. We’re already starting to see them. We will likely see a more coordinated effort led by democratic election lawyer, Marc Elias, who annihilated the Republican efforts to overturn the 2020 election. But, and I think Marc Elias would agree with this. It still matters a lot whether DOJ launches these legal challenges because that DOJ seal carries an awful lot of weight in the courtroom and for the American public. Will these lawsuits succeed? Hard to say. In the lower courts, the federal district court, the courts of appeals, it’s going to depend very heavily on which judge gets drawn or assigned randomly to each case. Get the right or wrong, depending on your perspective, district court judge, or a court of appeals panel, which is three judges, and that could be dispositive.

But we do know this, any case that ends up in the US Supreme Court and whoever loses below certainly we’ll try to get the case up there, that’ll be a steep uphill climb for anyone challenging the Georgia law. The Supreme court is a six to three conservative majority. And those six conservatives, including Chief Justice Roberts have shown very, very little inclination over their careers to expand voting rights. Don’t expect a Roberts crossover here. This isn’t going to be like some of the other issues where we’ve seen Chief Justice Roberts join with the liberals. He has, in fact, been on a long standing crusade against the voting rights act. There’s actually a great article in a publication called Vox by a writer, Ian Millhiser, from last year laying out Roberts’ history. And by the way, even if Roberts does flip over and join with the liberals, it’s still five, four conservative.

You would need to see two of those conservatives join with the liberals if they want to expand voting rights. The Georgia law is just the first of what likely will be many more to come. And this will be a monumental challenge to Democrats and to anybody opposed to needless restriction of voting rights. There are Republicans who are against this stuff as well. This will be a political fight and it will be a legal one and it will be playing out over the coming months and well beyond. Thanks for listening, everyone. And as always, if you have questions, comments, or thoughts, please email them to us at Letters@cafe.com.

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener. And the CAFE team is Matthew Billy David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley.