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Thomas: Hello and welcome to Opening Arguments, this is episode 457. I’m Thomas, that’s Andrew, how’re you doing, Andrew?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: Yeah, I am as well!
Thomas: For the last, like, two weeks, just been fantastic. Over the moon, so happy, and I think we get even more good news in today’s episode. We’ve got an update on more consequences. Lin Wood, couldn’t happen to a nicer guy.
Thomas: Consequences for Lin Wood, and also we are interviewing Jamil Favors, who you would’ve seen and heard from if you saw or listened to our election fundraiser, swung the election, by the way, in Georgia. [Laughs] I think we can say we made the difference there, and Jamil was a fantastic interview and we decided we wanted to have him back on as soon as possible, and we are! I can’t wait for that.
Andrew: I’m super excited about it.
Thomas: Alright, but first, consequences!
Consequences for Lin Wood
[2:11.2] [Segment Intro]
Thomas: So, what happened to Lin Wood?
Andrew: [Laughs] You are going to love this story, Thomas! One of the recurring questions we get, you know, pretty much every episode is when are there gonna be consequences for Sidney Powell for unleashing the kraken?
Andrew: For Rudy Giuliani, who, by the way, is under investigation by the New York State Bar Association; and here’s a story about reckoning coming due for L. Lin Wood, whom you may recognize as being a part of some of the dumber of Trump’s election-related lawsuits.
Thomas: That is saying something.
Andrew: [Laughing] Yeah, it’s a low bar that he managed to limbo under. The way in which this came about, I think, is A, brilliant, and B, potentially a model for some of these jerks going forward. Here’s what happened. Lin Wood has been Carter Page’s personal attorney. Carter Page you might recall from our discussion of the Mueller Report, Carter Page was the person sort of at the heart of making the allegations that the FISA wiretaps issued in 2016 on the basis of the Steele dossier in whole or in part, were invalid. In July of 2020 he sued Oath, Inc., the parent company to Yahoo News. That was with respect to Yahoo’s alleged failure to follow appropriate journalistic standards of ethics in publishing the Steele dossier.
I need to tell you, Page has been peddling these claims since 2017 and has lost everywhere he’s raised them. But when you read this lawsuit, it specifically and narrowly says that other journalistic outlets like the New York Times and the Washington Post, vetted the Steele dossier more heavily than Yahoo. Gave Carter Page the opportunity to respond, so it’s not – when you read the lawsuit it’s not obviously written by a crazy person. That’s sort of the standards we’re looking at these days.
Andrew: As always, Opening Arguments, you start at the back and you look at the signature block. The signature block begins with Sean J. Bellew, B-E-L-L-E-W, who is just a respected solo practitioner in Delaware. Nothing weird there. Everybody else is from out of State, they are admitted pro hac vice. On the caption are Lin Wood, we’re gonna talk about him; then the law firm of Pierce Bainbridge. You might be thinking, well that kind of rings a little bell?
Thomas: Did James Bond in the 90s.
Andrew: Yeah, that was Pierce Brosnan, but not bad.
Andrew: Pierce Bainbridge is the law firm that represented Tulsi Gabbard in her-
Andrew: -garbage lawsuits.
Andrew: They represent Rudy Giuliani, they [Laughing] the firm supposedly shut down in April of 2020, but John Pierce continues to use their caption-
Thomas: Would’ve been better off with Pierce Brosnan, actually!
Andrew: Yeah, they would be way better off with Pierce Brosnan. Somebody named K., that’s short for Kerry, Lawson Pedigo. This is not somebody I’d ever heard of before, so I did a little sleuthing, and Pedigo, Pierce, and Wood together are like the three amigos of right wing grift. They formed an outfit called #fightback and they own the [Laughs] website fightback.law, which is the only law firm website that I’ve ever been to where you can buy merch; although the merch link is broken; and they solicit donations, which, you know, again, seems a little weird for a law firm, but there you go. They just picked up Kyle Rittenhouse as a client, so-
Thomas: Oh my god.
Andrew: We’re talking about bottom feeding.
Andrew: We are talking about the very, very worst right-wing bottom feeders here. Carter Page wants to be represented by human garbage. These guys do what you typically do in cases like this, which is you hire local counsel that knows the rules of the jurisdiction that you’re in. In this care they’re in State court in Delaware. None of John Pierce or Lawson Pedigo or Lin Wood are admitted in Delaware, so they have to get admitted pro hac vice. That’s a totally pro forma thing. They file the Complaint; the Complaint has all of their signatures on it with a little italicized “pro hac vice motion pending.” Then the court’s like yeah, yeah, yeah, okay fine, whatever. You got a Delaware lawyer, he vouches for you, you’re in.
The reason to do that is because the Court values the choice of a litigant of getting her own counsel, of saying hey, I want this person to represent me. That ought to be something that, you know, that gets some respect. To which the Court owes some deference; your choice of your lawyer.
Andrew: Yeah. July of 2020, they file the lawsuit, they serve Yahoo, Oath, Inc., in August. Yahoo (Oath, Inc.) moves to dismiss so they file a Motion to Dismiss, Brief in Support, Carter Page gets to file his opposition, Yahoo gets to file their Reply Brief. Now we’re in late November and that Motion to Dismiss has been fully briefed and the Court holds a Zoom status conference on December 3rd setting oral argument on the Motion to Dismiss for January 13th. Now that’s significant, because typically – well, I can’t speak to Delaware State Courts, I don’t practice in Delaware State Court. I can tell you, typically courts, particularly federal courts, don’t often schedule oral argument on pending motions. It means they think this is something where it’s a close call.
Andrew: And so, we want to hear on the merits of the argument. By saying it’s a close call, that would be a huge win for Yahoo, for Oath, Inc. That would say yeah, we think that there is a reasonable probability that this defamation lawsuit about how you handled the Steele dossier should be dismissed without having to conduct any discovery or do anything else further. Okay, that’s what the court does, sets oral argument on the Motion to Dismiss for January 13th. Then something amazing happened over the next two weeks. On December 18th the judge, Craig Karsnitz, issued a sua sponte rule to show cause issue.
It says, “Rule to Show Cause Issue. This rule to show cause, why the permission to practice in this case issued to L. Lin Wood Jr., Esquire, should not be revoked. Mr. Wood and local counsel have until January 6th to respond to this rule, and if the Defendant has a position on the rule than the Defendant shall file it in writing by the same date.” The Defendant did not take a position, which, by the way, smart practice. When the Judge wants to disqualify Plaintiff’s counsel and you’re Defense counsel, you shut the hell up.
Andrew: Let the judge figure that one out. The reason was – remember, I told you something amazing happened in between December 3rd and December 18th, yeah, during those two weeks the Judge had seen Lin Wood file these bullshit election lawsuits in Georgia and Wisconsin.
Andrew: The Georgia suit was dismissed as (quote) “without basis in law or fact.”
Andrew: And the Wisconsin lawsuit, we actually mentioned this as part of our quick run through all these garbage lawsuits. That was the one that sought injunctive relief even though it wasn’t certified as an injunction, where they failed to serve the proper Defendants. It was – as Judge Karsnitz put it, “would be rejected by a first-year civil procedure class.” What Judge Karsnitz said was “you seem to be a terrible lawyer.”
Andrew: “I don’t want you practicing – I want you to show cause, I want you to file a document or documents as to why you should get to be in my Court.” If you ask yourself, can he do that? The answer is 100% yes, he can do that! Local Rule 90.1(e) says the Court may revoke a pro hac vice order, sua sponte (that is on its own) if it determined that the continued admission pro hac vice would be inappropriate or inadvisable. That’s the standard.
The Judge has to conclude that it would be inappropriate or inadvisable to let Lin Wood continue to practice law in this case, because pro hac vice, meaning Latin for I think “one time.” In other words, you only get admitted in this particular case, you’re not admitted into Delaware to just start trying cases there generally, and you’re there because you’re under the supervision of a Delaware lawyer and you promise to be on your best behavior.
The court’s like yeah, you seem really bad at this, so gave Wood until January 6th to file his brief. Another practice tip, the Court notes somewhat annoyedly that Wood filed his brief at 10:09 pm on January 6th. Again, in federal court it’s generally considered tolerable, particularly if the timelines are really, really short, to file up until midnight on the night of a deadline.
Andrew: When a court gives you three weeks over the holiday and says-
Andrew: -get this in by January 6th, I would shoot, I would be aiming for the afternoon of the 6th, you know, but in any event, Wood filed his brief at 10:09 pm on January 6th and it basically said “Judge, none of that stuff that you talked about happened in this Court.”
Thomas: Yeah! Clean slate, I guess.
Andrew: Yeah, and I haven’t been sanctioned. I haven’t engaged in any conduct that has violated the model rules of professional conduct, so what are you on about? Then after that filing [Laughs] the Court issued another minute order and said “hey, you know that January 13th hearing that we had? We’re only going to – that hearing is now solely for revocation of the pro hac vice; we’re not gonna get to the Motion to Dismiss, we’ll get to that at another time.” The Court issued that order on January 4th.
Then on January 6th, not only did Lin Wood file this paper, but, you know, an armed insurrection took place at the Capitol.
Andrew: So, Judge Karsnitz just got writing. He issued a written opinion on January 11th and said you know what? Remember that whole oral argument thing on January 13th? I don’t need oral argument.
Thomas: Oh wow.
Andrew: This is not a close case for me. I don’t wanna hear from this clownhorn.
Andrew: I’m gonna rule on my own motion after reviewing the pleadings, and I’m kicking him out of my court.
Andrew: Yes, again under Rule 90.1 the judge can do that. You have to provide an opportunity to be heard, which can be oral argument or can be on the pleadings. This ruling, I’m gonna include it in the show notes and I’m gonna read some of the best parts right now.
(Quote) “Prior to the pandemic, I watched daily counsel” that is Sean Bellew, “practice before me in a civil, ethical way to tirelessly advance the interests of their clients. It would dishonor them if I were to allow this pro hac vice order to stand. The conduct of Mr. Wood, albeit not in my jurisdiction, exhibited a toxic stew of mendacity, prevarication and surprising incompetence. What has been shown in Court decisions of our sister States satisfies me that it would be inappropriate and inadvisable to continue Mr. Wood’s permission to practice before this Court. I acknowledge that I preside over a small part of the legal world in a small state. However, we take pride in our bar.”
Thomas: Yeah, not in my beach community!
Andrew: Exactly right. Then he says “One final matter. A number of events have occurred since the filing of the Rule to Show Cause. I have seen reports of ‘tweets’ attributable to Mr. Wood. At least one tweet called for the arrest and execution of our Vice-President. Another alleged claims against the Chief Justice of the Supreme Court of the United States which are too disgusting and outrageous to repeat.” I wouldn’t repeat them as well and I think I’m gonna follow Judge Karsnitz’s example here. It was outrageous what he said about John Roberts. “Following on top of these are the events of January 6, 2021 in our Nation’s Capitol. No doubt these tweets, and many other things, incited these riots.”
Andrew: Then he says look, “I am not here to litigate if Mr. Wood was ultimately the source of the incitement. I make no finding with regard to his conduct, and it does not form any part of the basis for my ruling. I reaffirm my limited role.” But “I am revoking my order granting Lin Wood, Esquire the privilege of representing the Plaintiff in this case. Given my ruling, the hearing scheduled for January 13th is cancelled. My staff will contact the parties to schedule as soon as possible a date for [oral] argument on the Defendant’s Motion to Dismiss. It is so ordered.” Get out.
Thomas: [Laughs] This is not, like, normal stuff, right? I mean, this is pretty big judge smackdown?
Andrew: I have never seen this. Look, we talked about this when Rudy Giuliani moved to admit himself pro hac vice in Pennsylvania and lied and said “oh, yeah, I’m in good standing in New York,” when it turned out he was not in good standing in New York, he was in fact, you know, listed as retired and hadn’t paid his bar dues. I said at the time, you know it’s possible that the court might look at that, but I predicted correctly that the court would be like “yeah, we’re not gonna allow that sort of procedural – god bless him, if Donald Trump wants to be represented by you, Rudy Giuliani, we’re gonna let that happen.”
To override that, to say we don’t want you in the building, is a pretty – I have never, ever seen a court revoke.
Thomas: In fairness, how often does a lawyer, you know, try to lead an insurrection and say they should hang the Vice President and all that stuff, so good. I mean, this seems like it was called for.
Andrew: Exactly right, and people keep saying when are other lawyers, other judges, when are there going to be consequences for being Sidney Powell, for being Lin Wood? Well, you know, look, here’s a legitimate, real consequence. Getting kicked out of the case, can no longer be paid by Carter Page. This is a paying gig here, and the Court has said get out. I’m not letting somebody like you practice in my courtroom, which is kind of amazing.
Thomas: Good times! Consequences, folks! So fun. Alright, well, I think we need to get over to interview, Jamil Favors, let’s get Jamil on the line!
Andrew: Let’s do it.
Interview with Jamil Favors
[18:24.6] [Segment Intro]
Thomas: And we’re joined by Jamil Favors. Jamil, how’re you doing?
Jamil: I’m doing pretty great! So happy to be back with you all, thank you so much.
Thomas: Oh, thank you! I mean, first order of business, extended victory lap! Right?
Jamil: [Laughs] I thought the first order of business was sleep, but I’ll take the victory lap as well! [Laughs]
Thomas: Yeah, well actually, along those lines, why don’t you tell us about how your day went on election day? Or, you know, how the subsequent time has gone. What have been your feelings, your takeaways, how great was this win?
Jamil: Okay, if you don’t mind, I’d love to tell you about the whole day. On the day of the election, I had a chance to lead a team of attorneys in what we call the boiler room. The boiler room receives issues across the State from poll observers and poll watchers from, you know, the 159 Counties. An amazing shout out to the Board of Protections team and the poll watcher team, we were able to, you know, just get volunteers from all of these different Counties. Our call times was, I believe, 5:30 in the morning.
Andrew: At about 5:30 in the morning, we were on Zoom all day long and because we wanted to make sure that we had this cohesive nature, you have to keep your camera on on Zoom, but also at two different points during the day – no, three different points during the day – I have to leave. One, because we were leading a tele-town hall for a certain population of voters who we wanted to get out voting information. Around 10 o’clock there were about 7, I forget the name of this site but it’s about 17,000 calls that went out to voters who hadn’t yet to vote, and I basically got a chance to just really give these voters the kind of backup they need.
Then I hop back on, and then I get an email that said “hey, Jamil, there’s this news station that wants to talk to somebody in the Voter Protection Team, basically get some facts about what happens if you get in line before 7 pm, what are some of the rules and some of the laws they should have in their back pocket and you’re going to the polling location.” So, I run to my room, I put on a half of a suit, and I mean a half.
Jamil: I’m in shorts and flip flops at the bottom.
Thomas: Hopefully it’s the top half!
Jamil: [Laughing] Yeah!
Thomas: Don’t tell me you just put on the-
Jamil: Yeah, so I’m in like shorts and flip flops at the bottom and then at the top I have this full suit, so then I have to go back to the Zoom room, and that happens about twice. You know, we didn’t have – we knew, of course, there were gonna be issues, but we didn’t have that many issues so after the polls closed, I want to say we were able to get off the Zoom around 8:30 pm and I don’t know if you were watching the election results, but at around 8:30 pm that’s when you have, you have a lot of your early numbers.
Jamil: And the early numbers were leaning Democrat, but then I think we kinda had a good sense of, on election day, that we were gonna see a lot of votes come in for the opposing party, and we start to see that. I was on the phone with one of my really good friends that I’ve known for over a decade, we went to college together, and we just talked, we were just talking politics and, you know how it is when you’re talking with your friend; so how do you think this is going?
Jamil: How do you think this is gonna go, how do you think this is gonna go? Then-
Andrew: Let me jump in. How did you think it was gonna go in the afternoon? Were you cautiously optimistic? Were you just no idea, it’s all get out the vote, or, you know, did you have some access to, you know, some of the early data? Well, let me ask it as an open-ended and not a leading question.
Jamil: Okay, so I’ll answer in a two-part segment. For one, I am a big, I’m an optimistic person but I’m a complete realist. I give you the facts and they’re realistic, but I’m like, you know, I’m a man of faith, I’m a man of hope, so I have all that optimism in the world. I will be completely honest with you that a little bit of my optimism was a little shot from 2018.
Jamil: From 2018 because in 2018 I asked my judge, can I leave my clerkship early to come volunteer with the same team that I now work with, volunteer, and I’ll never forget, I was just sitting in a room with the then voter protection director and her deputy, and they just let me sit next to them and basically just help them out for an entire month. It was one of the most gratifying months I had ever been, and then I started at a firm and I was able to work the election day as a poll observer. Then, you know, we lose! And I had all the optimism then. I went into this runoff being cautiously optimistic.
Jamil: I always knew that whether we won was going to be highly dependent on how big the turnout was on election day. That turnout was going to be dependent upon on how the turnout was for Loeffler and Purdue, and while the turnout was good it’s just the turnout on our side and the absentee ballot voting was just so much better. I don’t know if you can hear the excitement in my voice, but when the cherry on the top came in is that I went to High School in DeKalb County. I served as a voter liaison in DeKalb County. Everything about me, so in DeKalb County, that’s like the east side.
Jamil: Any time I talk to anybody, I’m like, Jamil Akeem Favors, I may have been born in Atlanta, but I grew up in the east side of DeKalb County, so to see DeKalb County make an imprint and knowing that a large part of that County are Black and Brown individuals that look like me was utterly amazing and I got no sleep that night. [Laughs]
Jamil: I got no sleep at all!
Andrew: That’s such an awesome story, and especially the rise to prominence of DeKalb County. That’s – we – for those of us who are not native Georgians, learning the correct pronunciation-
Andrew: The silent “L,” all of that. We were sort of learning along with Steve Kornacki that night.
Andrew: [Laughs] Okay, so thanks in part to your efforts, hopefully, in a small part to our efforts as well, we’ve got two new Democratic Senators coming out of Georgia. What’s next for you?
Jamil: Um, I’m not gonna lie to you, ah, if I had that answer I wouldn’t be as stressed out as I am right now.
Jamil: You know, you two probably know this much more than I do. I took a risk in leaving the law firm back in July and coming over to the Party. Right now, there’s a level of excitement and a level of energy I have when speaking about advocacy, whether that’s in criminal justice, whether that’s in voting rights, and I would love to continue that; but I also know that while I am 31 years old and I’ve had a bevy of experience, a number of years consulting in accounting and some years in law, those opportunities are far and few between.
Right now, I’m interviewing every single day and, you know, trying to exude the same passion that I have on a call with you in landing the right opportunity. What I do know is that there was no better feeling than I’ve had for the last couple of months knowing that I was being able to advocate on behalf of individuals whose rights were being disenfranchised. There aren’t many people who can say that they had a great couple of months in the middle of a pandemic.
Jamil: Mine happened to be because, you know, two individuals decided for their voice to be heard and Reverend – well, Senator-Elect Reverend Warnock-
Andrew: Doesn’t it feel good to say that?
Jamil: Right! And Senator-Elect Jon Ossoff, they took that chance and then we had individuals like you all, who supported us. I mean, who ever thought Georgia, out of all places, would be the place that you’d be supported? I, on behalf of everyone, thanks you because I can promise you that the money you all helped to raise and the awareness you made possible went a very long way, because as you can see with the margins every vote and every ballot mattered.
Thomas: Yeah. It feels so much better with the end result being a win!
Thomas: I know it’s like, it’s what we’ve seen in many of these elections where honestly, it’s – the margins are so slim but the difference between getting to say that you had that one extra vote that mattered to make you win versus losing is so huge! I mean, we had to go through, when Trump won in 2016, he wins by 80,000 votes in three States and yet that turned the entire narrative upside down of, like, what mattered to who? What were the best arguments? Which voters’ interests matter? All that changes. I mean, it shouldn’t work that way? But it does, and so getting to sit here and say “we won in Georgia,” and “Democrats won in Georgia,” and “we made a difference.” Oh my god, does it feel so much better than if we had fallen short by just a couple votes, you know!
Andrew: Oh! [Sighs] Yeah!
Jamil: Well, I keep saying, thank you, thank you all. Seriously, if you could see my face, you’d see me, I wish I could give you guys a hug and say thank you again!
Andrew: We are coming down to Georgia for a live show whenever live shows are a thing again.
Thomas: We might ask for you to put on the whole suit, though. Just saying.
Thomas: Or not! Yeah. [Laughs]
Andrew: Just the bottom half.
Jamil: That’s really funny! I would prefer the top half because I love – I got some really comfortable sandals, but I’ll do whatever you all need!
Andrew: Hey, my impression – again, just from media coverage – was that I think largely due to the work that you and others did in November and December, that by and large this was free – the two special runoff races in Georgia were largely free of shenanigans and efforts to kind of shut down polling places early or get people in line to leave. The stories that you hear, was that your experience? What happened as the day was sort of winding down? Were there any hot spots that you had to put out or anything that came up? Or was it a pretty free and fair race?
Jamil: I think free and fair is a very strong term?
Andrew: [Laughs] Fair.
Jamil: I will say that there was a lot of work put in beforehand.
Jamil: And we saw the effects at the end of the day. I will say that there were a number of Counties who were attempting to change polling locations last minute. We’ve seen one, maybe, who tried to close last minute because of some of their poll workers getting sick because of the virus. What I will say is when you have over 2 million individuals vote early in person and over 1 million individuals vote by absentee ballot it allows for the day of voting to just run a lot smoother. The reason is there’s just less people to vote.
Jamil: There’s just less people to vote, so there weren’t – I’m not gonna say it was a free and clear election on election day. What I will say is that there was just less people and the system felt the effects of less people and that’s why I can say, you know, from the Voter Protection Program, we were able – you know, for the most part I believe, able to all be off, to go into our own selected misery or joy to watch the election results by, like, 9 pm.
Thomas: [Laughs] Wow!
Jamil: I can promise you, there have been prior elections where, I mean, things are being filed with the Courts 9, 10 pm to keep polling locations open.
Jamil: And that didn’t happen. I think no matter what, that’s a win. I don’t think there’ll ever be an election where everything closes at 7 pm because they open at 7 am, but if there’s an election where voters are not feeling like they got in line at 7 pm and weren’t allowed to vote, then that’s a win. There’s one thing the last year taught me is to count the small wins, so I’ll count the small win and just really congratulate everybody who had an effort there.
Andrew: I really appreciate the two clarifications that you made there, and I wanna sort of draw them out more specifically. The first is, you are 100% correct that the background conditions remain an uphill battle. They’re not background conditions of fairness, they are conditions in which if you are Black or Brown, your registration is more likely to be scrutinized-
Andrew: If you live in “particular areas,” which we could put in quotation marks, you are more likely to be underserved with resources, have fewer polling locations per capita. I mean, all of the underlying conditions that just made this – that are worth talking about. If we had a truly level playing field then maybe those of us, you know, looking at it from the outside and looking at it from, frankly, you know, more privileged positions would be able to say oh, well maybe we have done a disservice to Georgia for the last ten years. Maybe we should be thinking about Georgia as a much bluer State than, quite frankly, than we’ve thought.
Jamil: I completely agree with you. Just to give you an example of what you mean, and just how granular the oppression can be and how that shows in effect. Give you an example, DeKalb County, there are some amazing volunteers who advocate on behalf of DeKalb County constituents to the DeKalb County Board of Elections; and I was part of one of the battles to where there was an amazing consultant who recognized that DeKalb County, by and large part, there are parts of the County that are predominantly Black, there are parts of the County that are mixed, and parts of the County that are predominantly white.
I grew up in South DeKalb, which is predominantly Black, and what we realized is that the absentee ballot boxes in the predominantly Black part of the County weren’t as accessible. There just weren’t as many, so you had drive further per voter, the average voter had to maybe go 2, 3, maybe 4 miles to get to that absentee ballot box, where on the other side of part of the County, where it’s not predominantly Black and Brown you maybe only had to go a mile and a mile-point-five. I know someone who may be listening to this podcast, may be thinking, oh well is that that big of a deal? Yes! Yes, it is.
Jamil: It’s those small things, those minutia points where when you start to stack them up one by one by one you start to see that it was the advocacy of organizations like Verify; the advocacy of the Georgia Democratic Party; where you start to break down those numbers of oppression and you get a time like we have now. With that being said, I say this being so lucky to be able to have volunteered with the Party and, you know, play my little small part.
I say this looking ahead and knowing that we were in a moment in time. None of us can be oblivious about that, we were in a moment of time where we were in a country where 2020 brought so many things ahead, where we were able to get some great turn up. In a moment of time. Where I can’t wait to see is that moment in time and the election be tested in 2022 because – I mean, I can’t speak for anybody, but I guarantee you Georgia will be right back in that spotlight in 2022.
Thomas: Yeah, it’s gonna be interesting to see if we can all keep our energy up with Trump not on the ballot. I mean, that goes both ways. Obviously, Republicans turned out for Trump. That was the story of the last several years is Trump brought record turnout and Democrats brought record turnout plus a little bit. So, we’ll see what happens when he’s off the ballot. It’s gonna be up to all of us, I think, to keep up that energy and realize if we let up even for a year, even for a single midterm race, these margins are so slim in both chambers it could go away in a heartbeat.
Jamil: Do you think that the average individual knows that Trump beat his own record in this election?
Thomas: Yeah, I know.
Jamil: And that Joe Biden – we were able to beat the record that was just beaten and that’s just insane to me!
Jamil: But Trump lost the election by beating his own record. Then we won it by beating the record he just beat. That is absolutely insane to me.
Andrew: Let me ask you this one. In looking at sort of the conditions on the ground in Georgia, in a State that four years ago, six years ago, eight years ago, would not have been on – if you were a strategic campaign manager – would not have been on the list of like okay, this is a State that we’re gonna take that has been reliably Republican and we’re gonna turn it purple then blue. Where’s our next positive surprise gonna be? Are there other States that have a similar background where you would say it looks more Republican than it is because the combination of voter suppression, low turnout? Is there something you think where we could export this model elsewhere?
Jamil: [Laughs] It’s funny, some friends and I were having this conversation, and ten years ago a friend of mine reminded me of this. He’s like ten years ago I told him, I was like you know, I’m gonna go to law school and I’m gonna go back down to Georgia and I wanna be in public service and turn Georgia blue.
Jamil: You know, I didn’t necessarily know what that meant then, and I only played a small part now, but I believed that in my core because it was my home State. I have two friends that I talk about this all the time. One of my friends there believes that to be true in Alabama.
Jamil: This was brought up. Alabama, and then another friend believes it to be true in South Carolina. South Carolina you can kind of understand giving, you know, the major election they just had there. But what I found was that they believe it to be true because they were from Alabama and from South Carolina who had left the State and seen some amazing things, and recognized that the only difference in these other States, change in these other States, was the fact that in these other States people had an opportunity for their voices to be heard in the collective. I truly believe that’s what’s happened here in Georgia.
Yes, I guess I’m not naïve to think that the population and the demographics in Georgia haven’t changed, but I’m also not so naïve to believe that they changed so much to say that this election, you know, Democrats had this election in the bag. I am going to say those two States because I know I have friends there who believe that their State can change because they’ve lived there, they have family members who’ve never voted before, and just like me, was in the same position. Know that there can be a day when their family members are texting and calling them on election day screaming “yay we did it.”
Jamil: Our first time voting.
Andrew: I love that, and as you point out it is a question of the more we change the thought process that goes into what counts as an election the more we open that up, the more we make it possible to really get turnout from areas, from sections of the population that have been deliberately deterred as a result of policy choices from participating in the process. I love – you know, you highlighting three of the five million votes that were cast were cast either early in-person or early mail-in. Well, other than history, there is no reason that elections need to be a day.
Andrew: Particularly need to be a work day for working people. It forces you to make choices, and I think that dovetails with your other comment on, you know, the location of ballot boxes. You’re like okay, look, the difference between a mile, a mile and a half, or four or five miles might not seem like a big deal to you, but two things, number one that’s a super big deal to somebody that doesn’t have a car.
Andrew: And number two, even among those who do, it’s the repetition of a dozen things that, you know, that suppress the vote by a tenth of a percent, or third of a percent, or half of a percent. They might, each one might not be sufficient to tip an election in and of itself, but when you put it all together, you’re now talking about a substantial changing in the characterization of an electorate.
Jamil: I completely agree with you. It’s something that you stated that, it really resonated with me. You said it’s about a mindset change, right? More than anything about this election in Georgia, I think it gave other States who just always thought that their vote just didn’t matter, it was gonna go one way. It gave other States a glimmer to say “nope, that’s not true.” Change can happen, change can come slow.
I’ll tell a small story. I was speaking to one of my friends two days ago. This individual is a dual-degree JD/MBA from a top three institution and they stated that I would never admit this anywhere, Jamil, but this is my first time voting in this election.
Jamil: Because the State I live in – and they’re my age – the State I live in I never thought my vote mattered. Just the way my State was going to go, but after seeing what just happened in Georgia, I really had to rethink my position, rethink the position that I play in the process. No longer can I not vote, but I need to vote and also be a catalyst to make sure that my family and friends who I know have the same thought process I once did, vote. To me, that’s the biggest change. That’s what’s most important.
Because you, us three, we can sit on this phone all day and we can talk about voting, but we really love this stuff, we enjoy this stuff. But where I think the change happens is in living rooms and in kitchens when family members are talking about these things, that they would have never talked about, and they recognize that their vote and their voice matters. That’s where I think the change that we’ve been able to make here in Georgia is really gonna have the biggest effect.
Thomas: Fantastic! We are just so over the moon. You know, not even the fascist coup attempt could keep us down for long!
Thomas: Seriously! I mean, that did put a damper on the day a little bit. [Laughs] Not gonna lie! But then by the time, you know, that had worn off I’m just back to being so happy that we won, and thanks so much for your great work, Jamil, and for coming on our fundraiser and for coming on now. Ah, it’s so positive, it’s so exciting for the future! Thank you!
Jamil: Thank you both so much, and I can’t wait to see you all in Atlanta. I promise to wear the full suit.
[43:29.7] [Patron Shout Outs]
[55:02.6] [Segment Intro]
Thomas: And now it’s time for T3BE, answer time! Oh, this is… this is a big one. Do I start a new streak with which to pork with? [Laughs]
Thomas: Or do I merely not? Let’s find out.
Andrew: Alright so Thomas, yeah, this was a con-law question, this was about state law provides funding for public schools using a property values, the result being a disparate impact that student funding in high property value areas was – those schools were better funded, and in lower areas they were worse funded. The question is, in a lawsuit in which students in the low property value area challenges the law on the basis that it violates the Equal Protection Clause of the Fourteenth Amendment, who will prevail?
You said well this just kinda sounds like the way that public schools are funded! [Laughs]
Thomas: Yeah, I think so.
Andrew: This sounds like the status quo, so probably that means the state’s gonna win, and why is the state gonna win? Presumably because for an Equal Protection Clause analysis they’re gonna look at it and say that rational basis scrutiny applies; that being poor is not a protected class. The only gloss I would add on that is, and also, bizarrely, that education is not a fundamental right.
Thomas: Oh, yeah. Wow.
Andrew: When you have a deprivation of a fundamental right that can also trigger-
Thomas: Right, it wouldn’t matter, you know. Some of that other stuff.
Thomas: Oh, I didn’t think about that, but okay.
Thomas: But, in this country we don’t view education as a fundamental right, so…
Andrew: So, the rather depressing answer is in fact your answer, B.
Andrew: Education is not a fundamental right.
Thomas: Really? Jeez.
Andrew: And being poor is not a suspect classification, therefore the law requires-
Thomas: Oh my god.
Andrew: -only a rational basis review. You did, and I will say different formulations-
Thomas: This was – okay. I would not have gotten this right in year 1 of this show or 2 or maybe even 3. Maybe I shouldn’t get too cocky because it’s two questions, but maybe I can rise to the challenge of this impossible iteration of the test. Alright! I feel pretty good about this one.
Andrew: I think you should! And I think you are exactly correct in that this is not an example of where baseline intuition will get you to the right answer. The baseline intuition, I think, would lead you in the opposite direction.
Andrew: You would say well, yeah, education seems pretty important and it definitely seems arbitrary to say oh, kids in rich areas are gonna get a better public education than kids in poor areas. All of that, I think, human instinct is correct. We all know how we both feel about it.
Andrew: But all that would lead you to the wrong choice, so yeah; I think you deserve a double set of kudos for that.
Thomas: Oh, I feel like you could be a little bit happier for me, but okay, I’ll take it. Fine.
Andrew: What’d I say? I said double set of kudos!
Andrew: How much more can we ask for that? I said I think you parsed through a hard question that’s not intuitively correct.
Thomas: No, I think you’re mad that I – you’re like when I answer a riddle. You’re like the Sphynx or something, if I answer the riddle correctly.
Thomas: Like augh, fine. You get to go through to the labyrinth.
Andrew: [Laughs] I have to throw myself off this cliff, now, that’s what happened.
Andrew: It was fate, so.
Thomas: Oh, no.
Andrew: I’m excited for you!
Thomas: I think the important thing is #don’tporkthestreak is back.
Andrew: Don’t! Yeah.
Thomas: That is, what a good news couple weeks, Andrew! In a mere couple weeks, we’ve changed the balance of the Senate, we’ve gone from a streak that needed to be porked to now a streak that I very much don’t wanna pork. It just couldn’t get any better, and therefore I would like to announce that we’re retiring the show.
Thomas: No, I’m just kidding. [Laughs]
Thomas: We’re never retiring the show, and let’s find out who our amazing lucky porkage, no porkage winner is this week. Hop in that time machine.
Andrew: Well, Thomas, a bunch of people got this one right, including Thomas Mowle on Twitter who rights “The chapter I was editing had just discussed San Antonio Independent School District v. Rodriguez: No fundamental right to education that would trigger the 14th Amendment, so strict scrutiny does not apply. Also this ruling stinks.”
Well, Thomas, you are exactly correct and you’re also a Thomas, so everyone give Thomas Mowle a follow on Twitter, that is @ThomasMowle, and congratulations to both Thomas’s for getting this one right, and congratulations to Thomas Mowle for being this week’s winner.
Thomas: And that’s our show, wow.
Thomas: Still on the positivity, Andrew. Let’s see how long we can keep it going!
Andrew: I think we can.
Thomas: Thanks so much for listening, we’ll see you next time!