0:00:07.2 Rhiannon: Welcome to 5-4, where we dissect and analyze... Haha, just kidding. I would never. Peter is too good at the metaphors. Hey, everybody, it's Rhiannon. This week we've got something cool for you. Katy and Cody over at Even More News invited us to be guests on their show this week. They wanted us to talk about voting rights cases at the Supreme Court, talk about HR1 a little bit, and also to explain very capably, without any stumbles at all, absolutely flawlessly explain the filibuster. So definitely tune in for that.
0:00:44.2 Rhiannon: We had such a good time hanging out with them that we wanted to share the episode in our feed with all of our listeners this week, and if you end up liking the show and you wanna subscribe, you can find them wherever you get your podcasts, just search for Even More News.
0:01:00.5 Rhiannon: Next week, we've got another case episode for you. It's Hoffman Plastics v. The National Labor Relations Board, really cool case about the bad parts of immigration law, the bad parts of labor law, all mixed in into one. But for now, go ahead and enjoy Even More News. See ya.
0:01:21.1 Katy: Hello and welcome back to Even More News, the first and only news podcast. My name is Katy Stoll.
0:01:30.4 Cody: Hi, accurate, Katy Stoll, name, mine is Cody Johnston.
0:01:35.7 Katy: We got there eventually, folks! And hey, guess what, this is nothing to see here, [chuckle] just a normal episode of Even More News, except, wait a second, what's this breaking news? April Fools, you fools! We got you good. 'Cause today is not actually April Fools. Yesterday was April Fools. Also, this is not a normal episode of Even More News. Today, we are having a very special crossover event with the hosts of 5-4 pod, Peter, Rhiannon and Michael. Hi, guys!
0:02:06.1 Rhiannon: Hi!
0:02:06.4 Peter: Hey...
0:02:07.7 Katy: We are so...
0:02:08.4 Peter: Thanks for having us.
0:02:09.2 Michael: Hey!
0:02:09.4 Katy: Thrilled to have you. Yes, we are so excited to have you. I feel like I've said that in every single email I sent planning this. [chuckle] A while back, I actually had tweeted that we were looking to speak with a constitutional lawyer, and I received an overwhelming amount of responses from our listeners saying that, "You guys have to have the 5-4 pod guys on, it's gonna be epic." I don't wanna put that pressure on to make it epic, but we are thrilled to finally make it happen. [laughter]
0:02:40.9 Rhiannon: The first time that Twitter had like good positive results.
0:02:44.4 Katy: Yeah, okay, cool, I like it.
0:02:45.4 Cody: First and last, yes.
0:02:46.2 Katy: First and last. Just like this is the first and only news podcast. Isn't that wild that there aren't more...
0:02:52.9 Cody: One day.
0:02:53.4 Peter: I would have thought that there would be more, yeah.
0:02:55.2 Katy: At this point, after the last four years, anyway. Before we get started today, I just want... We just wanna get to know you guys a little bit. Why don't you start by telling us about your show and what you guys are doing over there?
0:03:09.2 Rhiannon: Yeah, sure. So I'm Rhiannon, and along with Michael and Peter, my co-hosts here, we have a podcast about the Supreme Court and how much it sucks. [laughter] Broadly, we kind of offer like leftist critique of Supreme Court cases, especially in the modern conservative era. We cover a different Supreme Court case every episode, and we basically just talk about how problematic it is, and what a political circus the Supreme Court is, contrary to popular belief.
0:03:43.4 Rhiannon: Our very first episode was about Bush v. Gore. We've covered affirmative action cases, abortion cases, cases on the power of the police. And actually, we just started a Patreon where listeners can sign up for premium episodes about like specific justices, like Antonin Scalia, or all the stupid ways like law school teaches you the Constitution should be interpreted. And we've been having fun in Zoom chats and on Slack with patrons also, so it's a good time. We're really excited to be here.
0:04:16.0 Peter: Wow, you're really selling it, Rhi, thank you.
0:04:17.0 Katy: Yeah, I mean, I was sold already 'cause I've listened and I love it, but what you've laid out is the exact demographic of our show. [chuckle]
0:04:26.0 Rhiannon: Amazing.
0:04:27.7 Katy: I think that our listeners are gonna love it. How did you guys... What are your backgrounds? How did you guys start working together?
0:04:35.1 Rhiannon: Oh, we're all lawyers.
0:04:36.7 Katy: Yeah, you are.
0:04:38.2 Rhiannon: We're all lawyers and we're all lawyers online.
0:04:40.8 Cody: That'll do it.
0:04:43.1 Rhiannon: Yeah. [laughter] It was the World Wide Web that brought us together. No, but I'm a public defender down in Texas, and Peter and Michael are, I don't know, the stupid kind of lawyer?
0:04:55.7 Katy: And what would that be?
0:05:00.1 Peter: I consider myself a regular lawyer, that's... When people ask what I do, regular lawyer.
0:05:05.1 Katy: When I think of a stupid lawyer, I kind of think of like a Giuliani or something, and so far, you guys are far more impressive.
0:05:12.0 Michael: Right. I did some corporate work and also some political work, worked for a PAC, founded a PAC, so yeah, not that stupid a lawyer, Rhiannon.
0:05:27.6 Katy: You had to go through quite a lot of school, whatever kind of lawyering you're doing, so...
0:05:33.9 Michael: That was stupid, I will attest, that was a stupid decision.
0:05:40.5 Katy: I think I'm smart enough to know that you're smarter than me, which is why I was smart enough to have you on here today to talk to us about voting rights, [chuckle] which is what we're about to get to. But you guys mentioned a Patreon, how long have you guys had that up? We wanna definitely funnel people over there. Maybe I should save that for the end, but I might as well mention it twice.
0:06:01.9 Peter: Yeah, we've been doing it for like a month. Is that right? Just like a little over a month, not long.
0:06:06.8 Katy: Well, welcome. I've found it to be, I don't speak for Cody...
0:06:11.4 Cody: You can, go ahead.
0:06:12.7 Katy: A game-changer, truly liberating. Cody and I are both very grateful to Patreon.com, [chuckle] yeah, to build a community like that and to just... It takes away needing to answer a higher-up, you get to... You have a community of people supporting the things that they believe in, and it's been a really beautiful experience for us, so I'm excited for you guys.
0:06:34.6 Peter: It's been fun.
0:06:35.2 Rhiannon: Yeah, we're really pumped too.
0:06:37.4 Peter: It's very like... I feel like instead of having to answer to higher corporate powers, instead we are subject to the whims of our disgusting listeners.
0:06:46.6 Peter: Who we despise.
0:06:50.2 Cody: It's a different kind of resentment. Yeah.
0:06:52.4 Katy: Yeah. I feel like we should get started, 'cause we've got a lot to go through. I already mentioned that today we are going to be talking about voting rights. Recently, this has been in the news, it's been in the news a lot, but especially this month, 'cause earlier in March, the House passed HR1. We're gonna talk about HR1 in depth later on. But for right now, I'll just say that it is an overall of Federal Voting regulations, if it passes the Senate, which probably won't happen, if we at the very least don't amend the filibuster, but if it did, it would make many changes to voting rights, campaign finance, ethics regulations.
0:07:31.4 Katy: And while this is long overdue, it's even more urgent, as we are seeing Republican legislators planning to pass all sorts of state-level laws targeting voting rights, and sure enough, last week, we just saw that Georgia passed several restricted changes to their voting laws that blatantly and disproportionately affect communities of color, with restrictions like requiring ID for mail-in voting, making it illegal to pass out food or water in voting lines, lines that if you recall from your recent memory, it can be long and hot. I believe they are also reducing the number of early voting drop boxes and moving them inside, limiting the hours that voting would be available.
0:08:16.1 Katy: This is widely been declared a Jim Crow 2.0, and the optics certainly weren't help when the law was signed in front of a plantation painting or the fact that Democratic State Rep Park Cannon, who is a black woman, was arrested as she knocked on the door to the News Cuff Conference and was dragged through the capital in handcuffs. Three different groups immediately filed lawsuits, and I say all of this to kinda set the stage for our conversation today, and I guess I'm gonna let you guys take this from here, 'cause like I mentioned, you're always smarter than me, or Cody. Sorry, Cody. We're gonna do our best.
0:09:00.6 Cody: It's true, believe me.
0:09:01.5 Katy: We're just gonna try to listen and ask intelligent questions as best as we can.
0:09:06.4 Cody: Intelligent questions.
0:09:08.3 Katy: And if we mess up, it's fine 'cause it'll get edited out anyway.
0:09:11.5 Cody: That's right.
0:09:13.1 Peter: Perfect.
0:09:13.2 Katy: But yeah.
0:09:15.5 Peter: Yeah. The Georgia bill is particularly egregious. The food and water thing, when I first heard it, I sort of was like, well, maybe they're getting at some like, I don't really... Maybe this is being misconstrued a little bit, and I looked into it and was like, "No, no." That's it, you just... No little water bottles in line. One out of every three voting machines is gonna be booby-trapped, I think, as part of it.
0:09:41.4 Katy: I always sneak in extra ballots through water bottles, so maybe this was smart, you know?
0:09:47.8 Peter: Yeah, I think the idea is that if I'm going in and I'm gonna vote for Trump, and then someone hands me a bottle of water and they're wearing a Biden shirt, I'm like, "Maybe I'm going about this all wrong."
0:10:01.5 Katy: I was gonna vote for Trump, but this Biden guy gave me a one bottle of water.
0:10:07.0 Peter: Yeah, I think that the place to start with voting rights is in the Constitution, and when you take a step back and conceptualize this as the arc of history, the original constitutional structure essentially provides no right to vote and was designed to kind of construct an oligarchy, almost explicitly. So all the original Constitution says about voting is that voting requirements for congressional elections are determined by the states, and for presidential elections, each state appoints its own electors who vote for the President.
0:10:47.4 Peter: And obviously now, those electors are pretty much symbolic, but that's not how they were intended, they were intended to be our oligarchic rulers, the guy with the tallest top hat in the room is your elector.
0:11:00.9 Peter: And so, no real right to vote in the Constitution as it's originally written. That sort of changes after the Civil War, when the Reconstruction Amendments are passed, and they don't create a right to vote, but they sort of refer to rights to vote in the 14th and 15th Amendments, mostly with the intent of protecting the black vote, the freed slave vote after the War, and to sort of despite that for the nearly a century, you still see tons of what we would now view as voter suppressive tactics, poll taxes, literacy tests, all sorts of obstruction, and things only really start to shift in the '50s and '60s.
0:11:44.1 Peter: The 24th Amendment passes in 1964, and that ban's literacy tests. In '65, the Voting Rights Act is passed. And at the same time, the Supreme Court under Earl Warren, the famous liberal Chief Justice, is handing down these seminal decisions that are protecting voting rights, using those Reconstruction Amendments as his basis and creating a principle of one man, one vote. So in 1966, the Court strikes down pretty explicitly racist redistricting practices, they strike down poll taxes the same year, and so that, combined with the Voting Rights Act, and there's sort of this new normal where the individual right to vote is relatively strong, and it sort of stays that way. Conservatives take over the Court later in the 20th century, and the right to vote gets a little bit weaker.
0:12:41.2 Peter: But I think the turning point is sort of Bush v. Gore, which was sort of this revelatory moment for conservatives who were like, "Oh, we can do anything." If you get away with stealing an election while everyone's looking, then the sort of limits of what you can use the courts for are boundless. And so, something we talk about on our podcast a lot is like 10, 15 years ago, a huge part of the political conversation was like, "What are Republicans gonna do?" The electorate's getting less white, it's getting younger, the demographics are shifting and they're gonna need to start changing their politics, and instead they were just like, "Maybe not everybody votes."
0:13:19.9 Rhiannon: Yeah. [laughter]
0:13:21.7 Cody: Or instead of that...
0:13:25.4 Cody: It sounds hard. Sounds like a lot of hard work. Instead of...
0:13:30.3 Peter: Yeah, there's a really long conference call where someone was like, "Guys, I don't mean to be out of line here, but what if?" And that guy is Mitch McConnell. That's really the lesson. And yeah, I mean, with that, with that sort of political strategy came a legal strategy. And so modern conservative legal scholars have latched on to the idea that is enshrined in the Constitution that states control their own elections. States control their own elections to some degree. And of course, that's sort of in the narrow sense unquestionably true, but they've sort of interpreted it in such a way that is designed to give states free rein to pass all sorts of voter suppressive tactics and laws in order to combat what they are presenting as ostensible fraud, which of course is a slightly exaggerated form of what is actually happening.
0:14:33.8 Katy: Slightly? Yeah, you could say that.
0:14:38.1 Rhiannon: So I think that kind of brings us to the modern Supreme Court and the treatment of voting rights during the Chief Justice John Roberts era. So a really important case that came down in 2013 is a case called Shelby County, and this was a case that is known as kind of gutting the Voting Rights Act. So this is a majority opinion written by Chief Justice John Roberts, and just to note that before John Roberts was Chief Justice John Roberts, when he was a younger lawyer working in the '80s during the Reagan administration, he was writing tons of memos about how the Voting Rights Act is unconstitutional and shouldn't be expanded.
0:15:27.5 Rhiannon: And so all of this sort of the conservative legal movement that has grown around sort of suppressing the vote and trying to pick away at the Voting Rights Act, that has really just continued with John Roberts now in the position of Chief Justice on the Supreme Court. So talking about Shelby County, Shelby County, like I said, is a 2013 case out of Alabama, and it concerns the Voting Rights Act. Under the Voting Rights Act that Peter mentioned, it prohibited racial discrimination in voting sort of broadly, but there are some really complicated provisions in there for trying to make that a reality in the United States.
0:16:11.5 Rhiannon: So in Shelby County, though, the Supreme Court held that the formula that's set out in the Voting Rights Act, this formula that sets out which jurisdictions get federal oversight over changing their voting laws, because those jurisdictions had been racist in creating voting laws in the past, the Shelby County decision holds that that formula is unconstitutional. So broadly speaking, this is completely gutting the Voting Rights Act, because the law really only means something... It only has accountability measures for these places that have a history of racist voting restrictions, if that formula is in place for determining which places are historically racist.
0:16:57.4 Rhiannon: And Chief Justice John Roberts, writing for the majority, he justifies that holding in two really dumb ways. First, he's got this long tangent about state sovereignty. Like Peter said earlier, they're always balancing this individual right to vote versus a state's right to carry out elections and voting the way the state deems it wants to do so. And so there's a long tangent about state sovereignty in Shelby County, and then there's this other tangent that Roberts goes on, where he's talking about how voter turnout is actually up in these historically racist jurisdictions. You know, racial discrimination is now not so much of a problem anymore, and so we don't need this Voting Rights Act coverage the same way we used to need it. And of course, he leaves completely unsaid that the entire reason voter turnout is up and discrimination in voting is lower is because of the Voting Rights Act.
0:18:05.5 Katy: I just don't understand how you get away with that. I mean, I do understand, but it's like, "Come on. You're not even exactly saying... You're saying it out loud without saying it out loud."
0:18:19.2 Rhiannon: Yes. Yeah. Absolutely. A big part of our podcast is about how the Supreme Court is often saying the quiet parts of the conservative legal movement. They're saying the quiet parts out loud, and it seems like nobody is really getting that.
0:18:32.6 Katy: Well, you dress it up in big words and make it sound one way, and people are like, "I don't know. I'm not gonna dissect this." I don't know, that's a simplistic answer, but anyway...
0:18:42.7 Rhiannon: No, that's exactly right. It's absolutely part of the political game of the GOP. So as a result, as a direct result of the Shelby County decision, the consequences are sort of... They're nearly immediate. You get relentless systemic voter disenfranchisement and suppression. Within 24 hours of the ruling, which was, again, back in 2013, Texas said that it was going to be enforcing its voter ID law without getting pre-clearance from the federal government, for example, and the decision also directly resulted in states all over the country passing laws that did a whole host of voter suppressive stuff. Stuff like removing online voting registration and early voting, implementing voter ID laws, purging voters off of the registration rolls, closing polling locations on and on and on.
0:19:42.9 Rhiannon: And there have been studies about the effects of the Shelby County ruling. Five years after the decision, thousands of polling locations had been closed across the country. The US Commission on Civil Rights, in fact, found that after the ruling there had been an increase in discriminatory laws that made it harder for minorities to vote, and that same year, that would have been 2018, the Brennan Center issued a report that found that the Shelby County decision alone, by itself, was responsible for the purge of two million people from voter rolls across the country in just three years.
0:20:21.7 Cody: Wow.
0:20:22.0 Rhiannon: So all of that to say that the Roberts Court knows what it's doing, and cases like Shelby County fit into a broader conservative project of this voter suppression, right? And there are other examples from the Roberts Court, big cases, a case called Rucho v. Common Cause, that's a case that where the Court ruled that partisan gerrymandering is just this purely political issue for which federal courts, they just can't touch it, they can't decide those issues. And there's another really important one, it's important to the conversation about HR1 that we're about to have, an important case called Husted. This is a 2018 case out of Ohio in which the court upheld the state's voter caging scheme, which had resulted in hundreds of thousands of otherwise eligible voters to be purged from the state's voter rolls.
0:21:17.1 Rhiannon: So what Ohio had done, it's just as egregious, and also stupid as it sounds. What Ohio had done was implement this system in which people who had failed to vote in the previous two years were sent a notice in the mail to confirm their voter status. And if you failed to respond to that mail, to that notice, then you were just taken off of the voter rolls in Ohio. And the majority ruling in Husted, the majority ruling at the Supreme Court, said basically that even though federal law says you can't purge people off of registered voter lists solely because they sit out an election cycle, well, Ohio was doing something different, because it was purging people off of voter lists who had maybe sat out an election cycle, and they got a notice in the mail. See what they did there?
0:22:09.1 Cody: Yeah, they didn't read the fine print. [laughter] They didn't opt-in, you're automatically opted-out unless you do this.
0:22:15.1 Rhiannon: Exactly.
0:22:15.6 Katy: It's just like the easiest possible loophole that you can find.
0:22:18.8 Cody: It's cable company shit. It's like, it's so insidious.
0:22:22.6 Rhiannon: Absolutely.
0:22:23.0 Katy: I mean, I'm an active voter, and I would definitely... I mean, I would miss something like that very easily, a junk mailer...
0:22:30.9 Cody: I don't check my mail.
0:22:32.7 Rhiannon: Totally.
0:22:33.3 Katy: Shoved into all the advertisement things that you always just recycle.
0:22:38.4 Rhiannon: Yeah, and studies and briefing for that case at the Supreme Court showed that it was really hard for people to get back even when they wanted to be active voters. It was really hard for people to respond to something as minor as just getting this notice in the mail. And you know, Justice Sotomayor wrote in dissent in the Husted case, a dissent that we largely agree with, and she said that this kind of system puts too much of an onus on registered voters to stay registered, and it also disproportionately burdens minority communities, the poor, and disabled voters in particular.
0:23:16.0 Rhiannon: So we move now to looking forward a little bit. This past month, the issue of voting rights was again before the Supreme Court, and we don't have a ruling on these cases yet, but voting rights are again gravely at risk now with a 6-3 conservative super majority deciding the issue here. And so there were two cases, actually, that were argued earlier in March. The first is Brnovich v. DNC, the Democratic National Committee, and the other one is a case called Arizona Republican Party v. DNC. Both of these cases...
0:23:54.6 Peter: And by the way, Rhi, sorry to interrupt, but a cool tip, if you're not a lawyer, is if you ever see a political party on one side of the V in a Supreme Court case, terrible news, a bad thing is coming.
0:24:08.9 Katy: Thank you, that is helpful. I'm not familiar with all of this.
0:24:12.3 Cody: Also weirdly, specifically, the Arizona GOP.
0:24:14.7 Michael: Yeah, they make a lot of appearances.
0:24:17.2 Rhiannon: Right, yeah, exactly.
0:24:18.4 Michael: And Arizona voting in general.
0:24:21.7 Rhiannon: These folks are litigious. So yeah, both of these cases are out of Arizona, and they're both challenges to two Arizona laws that make it more difficult to vote. So the first is a law that requires voting officials in Arizona to discard ballots cast in the wrong precinct in their entirety. So instead of simply not counting votes for local candidates, who the voter should not have been able to vote for, like perhaps counting the votes for say state-wide offices or state-wide elections, this law requires that voting officials cast out the entire ballot if it's incorrectly cast in the wrong precinct.
0:25:05.5 Rhiannon: The second is a law that prohibits many forms of what's called ballot collection, where a voter might fill out their absentee ballot completely legally and completely in good faith, they would fill out their absentee ballot and then, say, give it to someone else and that person delivers the ballot to the election office. This law prohibits many forms of that kind of ballot collection, which if you're paying attention, makes it harder to submit your ballot, right?
0:25:33.3 Katy: Yeah, this is what we hear of as ballot harvesting a lot...
0:25:39.1 Rhiannon: That's right.
0:25:39.6 Katy: People inflame that and try to make it sound like something it isn't.
0:25:44.4 Rhiannon: Exactly, right. And the risk here, with the decision on these cases at the Supreme Court, which we don't know which way it's gonna come down, but based on these past cases that I've talked about in the Roberts Court on voting rights issues, it's pretty scary. The risk isn't necessarily just that these laws in Arizona would be upheld, and it makes it harder for people to vote there, but also that the Court issues a ruling that sort of further weakens the Voting Rights Act, just like they did in Shelby County. So if the Court rules on these cases that there are limits to certain provisions of the Voting Rights Act, it would basically give state officials really sweeping broad authority to enact racist election laws.
0:26:34.3 Michael: Yeah. Good stuff.
0:26:35.5 Katy: This is a lot.
0:26:37.8 Rhiannon: Yeah, yeah, where we stand now...
0:26:41.4 Katy: Clear eyed, full hearts, could very, very easily lose. So the Voting Rights Act already has been gutted effectively in the places that it is needed, and these upcoming cases would be like the nails in the coffin.
0:27:03.2 Rhiannon: Right. It sort of just further threatens voter rights nationwide.
0:27:06.4 Michael: It very much could be, but there is some hope...
0:27:10.0 Katy: Here we go, I love a hopeful.
0:27:12.4 Michael: And this show is called Even More News, we should actually talk about some news, right?
0:27:16.6 Katy: I would love that.
0:27:17.7 Michael: So we should talk about HR1, though, We The People Act. Which, one thing that is nice is that back at the top of the episode, Peter mentioned that a lot of times voting rights is this sort of balance between the individual voter against a state's, individual state's, ability to manage its own elections. But the Constitution actually gives Federal Congress the power to override the states, and it says Congress may at any time by law make or alter the regulations, 'cause it has to be able to govern its own elections, in federal elections.
0:28:01.0 Michael: And so that gives Congress a lot of power to legislate here, in addition to the Reconstruction Amendments, like the 14th and 15th Amendment, which not only refer to a right to vote, but give Congress the power to legislate to enforce it. And the Democrats have taken, seized that moment here with the We The People Act, and it is a big, comprehensive and very strong bill. It covers voting stuff, it covers campaign finance stuff, it covers ethics rules, it's way too much to go into in detail.
0:28:42.2 Rhiannon: Yeah, it's a lot, it's like 800 pages.
0:28:44.3 Michael: I read every one.
0:28:45.4 Rhiannon: You did not.
0:28:46.5 Michael: I'm gonna say I did. Nobody can prove otherwise. [laughter]
0:28:51.1 Katy: Wow. I believe that you did.
0:28:56.0 Michael: But I do wanna talk about...
0:28:57.1 Katy: Real quick, I feel like so many lawmakers do not read all the text, right? That has to be true.
0:29:01.9 Michael: No, it's usually only a few key lawmakers on important committees and stuff, and then they sort of distribute literature breaking it down.
0:29:12.7 Katy: Gotta say, it makes me nervous anyway.
0:29:15.3 Cody: Don't love it, yeah.
0:29:16.5 Katy: How many people do not read the laws they're passing? What were you gonna say?
0:29:20.2 Rhiannon: No, no, fun fact, Michael is the only person in America who actually reads the legislative text of all of these bills.
0:29:30.0 Rhiannon: That's a big responsibility for you, Michael.
0:29:32.5 Michael: So I do wanna talk, the voting stuff is fantastic. It's really, really great. The voter registration stuff is super comprehensive. It includes automatic voter registration, which means any time you give your information to a state government, you would be registered to vote, and you'd have to affirmatively opt out of that. So you get your driver's license, you go to school, universities would become registering institutions.
0:30:02.2 Katy: This is all common sense, that's common sense to me.
0:30:05.1 Cody: Or the idea that you decide if you don't want to be registered to vote. The baseline is you can vote now.
0:30:13.1 Michael: Right, exactly. The baseline is you're an eligible voter, so we're registering to you to vote and if you want out, that's fine, but otherwise if we know who you are we're gonna make you a voter. And it makes it super easy. It mandates online registration, including updating your information, it mandates same day registration, so you could go to the polls on election day and register to vote if you are not yet registered or registered in the wrong place. It mandates 15 days of early voting, including at least, I think, two weekend days, which is excellent, that's a big way that the Republican Party has tried to limit access to the ballot. It makes mail voting very easy and expansive, it has to be accessible to everyone, it has to include return postage, so you don't have to have ballot harvesting issues, you can just stick it in the mail.
0:31:11.2 Katy: Does it also include something about all mail-in ballots have to be in a certain class of postage, so that it is true and accurate delivery time?
0:31:20.1 Michael: Yeah, that's my understanding as well. Yes.
0:31:21.3 Katy: Okay.
0:31:22.8 Michael: It also, I think something I'm really excited about, it mandates the re-enfranchisement of former felons upon release from prison. This is a live issue right now in Florida, where by ballot referenda the citizens tried to re-enfranchised former felons and the Republican legislature immediately knee-capped it by saying, "Even if you served your time if you haven't paid all your fees, you're still not... You haven't completed your sentence so you still don't get your rights restored. Oh, and by the way we don't know what fees you owe, and we won't be able to tell you what fees you owe until 2026 at the earliest. So sorry, it's gonna be eight plus years before you can vote."
0:32:10.0 Peter: Democracy, baby.
0:32:10.1 Katy: It makes my blood boil. All of it. Sorry to keep interjecting. Everything and all of it. And just the, yes, very blatant tactic of, "We just don't want people to vote. We don't want you to show up because then the only people who will show up are white, wealthy people."
0:32:29.0 Michael: It responds directly to the Husted... Hyusted? Hoosted? Decision that... Husted?
0:32:35.5 Peter: I thought it was Husted, I'm gonna be honest, until Rhi started saying Hyusted, and now I don't know.
0:32:39.7 Katy: Husted sounds like a cool action movie.
0:32:43.3 Cody: It does.
0:32:44.0 Rhiannon: I'm gonna be honest, I didn't know for sure. And what I said to myself, is what I say to myself before I go into court, which is fake it till you make it." You just gotta say it confidently.
0:32:53.1 Peter: Yeah, just believe.
0:32:53.2 Katy: I do it all the time. I really do. I get a lot of feedback for that, but it works for the moment, and that's all I care about.
0:33:03.4 Michael: But it says that decision was wrong, it prohibits caging efforts, which is when you send mail, and then if you get it like returned, non-forwardable mail, if you get it returned, kicking people off the rolls, it reaffirms that not voting in an election cycle or two is not grounds to remove someone from the rolls, so it would undo that decision and make it much harder to purge the voter rolls. It cracks down on a really loathsome practice called prison gerrymandering. Prisons are used to boost the populations of conservative rural areas with non-voters, right.
0:33:46.7 Michael: It's pulling minorities out of urban areas and putting them into rural areas and increasing the power of conservative areas without changing the actual demographic make-up of the voting population. It's pretty gross.
0:34:03.2 Katy: Right.
0:34:04.4 Peter: Just like direct parallel to the Three-fifths compromise.
0:34:06.7 Cody: I was gonna say, that's exactly it. That's so transparent.
0:34:12.4 Michael: It also generally cracks down on partisan gerrymandering overall by mandating that congressional districts are drawn by an independent commission. You know, I've seen this provision criticized by some people who don't think independent commissions are all that great, but I will tell you what, it is far, far preferable to what we have now.
0:34:34.1 Katy: Yeah, what's...
0:34:35.4 Rhiannon: Absolutely.
0:34:36.5 Katy: The alternative...
0:34:37.1 Michael: I think the alternative is literally like... It is like proportional representation in multi-member districts, that's the only true way to... And some sort of redistricting shenanigans, it is just proportional representation. So in addition to all that good stuff, there's also lots of good campaign finance stuff: Dark money disclosure requirements especially, and cracking down on all the ways that disclosure requirements are already sort of evaded, and the Senate Bill has a nice federal matching funds for small donor fueled Senate campaigns. So if you reject large...
0:35:20.6 Katy: So the Senate bill would be addition to [0:35:22.9] ____.
0:35:23.1 Michael: Right. So HR1 passed the House, and Senate Bill 1 is now under discussion in the Senate, which is very, very similar. But it includes the matching funds for Senate races, which is six to one matching funds, if you go the small donor route. There's other stuff in there like about legislative findings in case they want... In order to pass a new Voting Rights Act, the John Lewis Voting Rights Act, which is a separate bill that's working its way through Congress, legislative findings in support of making DC a state, which is itself another bill, I think it's HR 51, that's making its way through Congress, so yeah, there's a lot of stuff in here, that of course... Yeah, it's a great bill.
0:36:10.7 Rhiannon: HR1 rules. That's the conclusion.
0:36:12.9 Katy: Yeah, and it's kind of thrilling to see a bill that I do...
0:36:19.7 Michael: Yeah, it's ambitious.
0:36:20.7 Katy: Like so much. You know, without as many things where you're like, I wish this, I wish that, yeah, no, wait, that's a really kinda, kinda nailing it here.
0:36:31.2 Cody: And for you, it's just knowing like, yeah, as it builds and builds and builds, it's like you have to chip away at so many things.
0:36:37.1 Michael: Right, and one thing I wanted to mention also is that it prohibits voter ID loss, which is very nice as well. So you could same day register just with like a affidavit and a signature. So really, really nice.
0:36:53.9 Katy: One thing that I saw that I thought was cool, and I don't have it in front of me, 'cause that would be too smart, but some sort of a change to the rules, spending rules, that you could use campaign funds for, let's say, child care for candidates, personal expenses, which opens the door for more people... For more people to run for office.
0:37:20.1 Michael: It makes it more accessible.
0:37:21.9 Katy: Which is to me, feels like, that alone is huge.
0:37:26.1 Michael: Absolutely.
0:37:28.0 Katy: And exactly what we need.
0:37:28.0 Michael: Yeah, and there's a lot of accessibility stuff as well for, both for making it easier to run for office and also to make it easier to vote, even stuff about maybe having like... There's... They wanna do a study on being able to vote from your home if you have a significant disability.
0:37:46.5 Katy: How would that like...
0:37:48.1 Michael: I think that... I think it would be like people would go to their house, I think it's literally...
0:37:53.6 Katy: Oh, amazing.
0:37:55.6 Peter: Or like the right color smoke out your chimney, like the Pope.
0:37:57.8 Michael: I think you make a request online, and then somebody would go to your home and... Yeah.
0:38:05.4 Katy: Have we looked at the carrier pigeons, because that seems really non-partisan.
0:38:10.5 Cody: We'll get the joy on that.
0:38:12.8 Michael: So I think what's exciting about this bill too, is that it's not like... It's not coming from the left fringe of the party, it passed the House already with the entire party behind it, it has 49 co-sponsors in the Senate, the entire caucus is sponsoring it, except for Joe Manchin of West Virginia, but...
0:38:38.5 Cody: There he is. There's our guy.
0:38:40.7 Michael: Before we yell at him...
0:38:41.9 Peter: The President of the United States.
0:38:46.5 Michael: I wanna say Manchin co-sponsored a basically identical bill in the last Congress. He's not against, I don't think, any of the provisions in this bill.
0:38:56.0 Cody: He just loves the drama.
0:38:58.5 Katy: He just wants to keep that position.
0:39:00.5 Cody: He lives for the drama.
0:39:01.5 Michael: So he released...
0:39:02.8 Katy: Which makes me like him much less. I didn't like him at all anyway.
0:39:08.5 Michael: He released a statement saying that he thought something like this should be bipartisan, and he outlined what he thought were provisions within the bill that he thinks could garner bipartisan support. And those included 15 days of early voting, it included some Native American voting rights stuff that's in the bill, that's also good, and it included the campaign finance stuff, especially the disclosure that would hit, you know, wealthy donors. That stuff's all very popular.
0:39:46.6 Michael: One thing we know is... One reason we know why that stuff is very popular is because we have a leaked recording of Mitch McConnell and legislative aides talking to one of the Kochs, I think it's David Koch, right, back in January about this bill, frustrated with how popular the bill is, and especially how popular the disclosure requirements are [laughter] and they're like, they're going on about how they've been message testing it and everybody loves it, even Republicans love it, and they try to attach stuff to it, they're like, if we put AOC's name on it, it's still popular. If we say it's cancel culture, it's still popular. There're like, we can't... And they are very upset about it, they don't like it at all, and you know, their conclusion was that we're not gonna win this as a public relations battle, we need to win this, they said, "Under the Dome", which means like killing it in committee, killing it with the filibuster, something like that.
0:40:53.4 Katy: That's the thing, when you make progress when people... When a new idea takes hold, when progress is made, it's very hard to change it back, because people expect that.
0:41:04.2 Michael: Yeah exactly, they're like once this passes it's gonna be hard to undo, for sure, for sure.
0:41:09.3 Katy: Yeah, right. Right.
0:41:10.9 Michael: What this means for Manchin is like, you know, I think what he's done here is savvy, I really do, because if you compare it to the way Democrats bungled the healthcare negotiations, there they spent months negotiating with individuals about like what they do or don't want in the bill. Instead Manchin's outlined what he thinks a bipartisan compromise should look like it, right? He said these things should have support, here are individual bills about this stuff that had bipartisan co-sponsors, right? And put the ball in the Republicans court and said like, here you go, I'm ready to negotiate with you on a smaller bill, but this is what it should look like and now the onus is on them to come up with 10 or more votes that could pass something like that, which is not gonna happen, because precisely what we were just saying, McConnell and their big money backers hate this stuff and they especially hate the money stuff that Manchin likes.
0:42:12.9 Michael: So that's not gonna happen and when that doesn't happen, that's when, you know, he's gonna be put to the question, which is, so what do you wanna do? Do you actually wanna legislate? Do you wanna pass this stuff? 'Cause if you do, you have to reform the filibuster. And he's made good, good noise on that, I think, about not eliminating it, but putting in a talking filibuster, things like that.
0:42:36.2 Katy: Let's break that down what that means, 'cause just for people, what a change like that would look like if not eliminating the filibuster together.
0:42:44.4 Rhiannon: Before Michael starts, before Michael starts, because he definitely knows, I just want to say, Katy, that while we were prepping for this I, not so jokingly, half-jokingly, was like Peter, Michael, can you guys explain to me what the filibuster is before we go on this show. [laughter]
0:43:07.2 Katy: I'm so glad you did and I'm so glad you shared that, because I've had the fil... I've talked about the Filibuster with people and I have like a general idea, like enough to get by, but I'm not gonna try to break it down for anybody.
0:43:20.3 Rhiannon: Right. Right.
0:43:21.0 Cody: So do you feel comfortable explaining it instead of Michael, then?
0:43:24.7 Katy: Oh, yeah...
0:43:26.4 Rhiannon: No, absolutely not. No, because these losers didn't... Didn't explain it to me, even though I asked.
0:43:30.9 Peter: That's because I don't know, Rhiannon, I don't know.
0:43:32.5 Katy: Here's the thing. No one's ever read the filibuster law, so it's all [0:43:37.4] ____.
0:43:37.6 Peter: No one knows what it is.
0:43:39.2 Rhiannon: Except for Michael, except for Michael. [laughter]
0:43:42.0 Peter: What Katy left out of the story of when all of the people on Twitter told you to do a cross-over with us is that it was originally for the impeachment...
0:43:50.2 Katy: Yeah, it was.
0:43:50.5 Peter: And then you did reach out and we were like, we have no idea what's going on.
0:43:55.4 Rhiannon: We cannot talk about that.
0:43:58.6 Katy: It's true.
0:44:00.4 Katy: It's true. We got a great guest. But I... So yeah, Micheal, all eyes on you.
0:44:06.5 Michael: So the thing is, the way the filibuster works right now is, you don't really have to do anything to kill a bill, you can basically call a vote, and as long as you can muster 41 votes against moving forward with debate, the bill is dead. What a talking filibuster does is makes you actually hold the floor if you want to delay a vote, right? And actually debate, right. The idea is like, if you really feel strongly about something, go up there and argue against it and you'll have the floor as long as you want it and if your will is strong enough maybe you'll outlast the sponsors of the bill, maybe they'll say, "You know what, I don't... "
0:44:52.4 Peter: Or if your points are good enough, right, if you do a full Mr. Smith goes to Washington, then everyone will...
0:44:57.1 Michael: Right. Or you convince people...
0:44:57.5 Cody: If you're sweating enough...
0:44:57.8 Michael: You can convince people with like your arguments or your conviction or whatever, right? In reality.
0:45:06.1 Cody: Or Green Eggs and Ham, whichever one...
0:45:07.9 Katy: Or Green and Ham.
0:45:10.1 Michael: In reality, that almost never works and it just delays things, right?
0:45:13.1 Katy: Well, what it can do is make you look dumb, I think. Getting up there and you're like, you're really killing time and you're not giving any more compelling points, so... Right, right.
0:45:22.9 Michael: No. And the incentives for Republicans are entirely different, right? Like it's easy to be one out of 45 Republicans who are voting no on cloture, which is what it's called when you try to break a filibuster. That's like sort of an anonymous thing, right, that you don't have to do anything for. It's quite another thing to be the guy who's sitting up there reading Green Eggs and Ham for seven hours straight because he doesn't like this bill that, you know, Republicans themselves have conceded is wildly popular, right? Like nobody wants to be that guy, the one who's on the news, so it makes it a lot harder individually and as a caucus for them to do any sort of obstruction. They could delay a little bit, but if it becomes a talking filibuster, then this law will be passed, and I think it'll be passed in basically the shape it is now, so that's exciting.
0:46:23.6 Peter: And if they do read Doctor Seuss, it won't be Green Eggs and Ham, it'll be yellow racist ones. [laughter]
0:46:30.6 Rhiannon: It will absolutely be.
0:46:32.0 Katy: You know, you know that they will. You know that they will.
0:46:33.5 Rhiannon: Yeah, oh, absolutely. They're validating.
0:46:35.9 Michael: I think it's good, the stuff he's talked about, and one of the reforms he's shown like an openness to is even better, which is like you have to hold 41 votes all the time, so it's not just that one or two people can be in there filibustering, you have to keep your caucus in there. So the entire Republican Party essentially would need to be in the Senate continuously for 10, 12, 24, 48 hours. It's not...
0:47:03.0 Cody: But they hate being in session. They don't wanna be there and do stuff.
0:47:06.3 Michael: Nothing Senators hate more than being in chambers doing their job, so that is...
0:47:12.1 Rhiannon: Yeah, and look, I get it but...
0:47:14.8 Michael: Rhi also hates them and [0:47:17.7] ____ doing their jobs.
0:47:17.9 Cody: I mean, same but I didn't ask for the job, so...
0:47:19.0 Rhiannon: That's right.
0:47:21.0 Katy: Do you think... I mean, you sound hopeful about it, about that, do you think that we would get to that point? Do you think Manchin... Do you think he will get there, yeah.
0:47:32.7 Michael: Actually, I do. I'm cautiously, cautiously optimistic about it.
0:47:38.2 Katy: It's infecting me and I love it!
0:47:40.6 Michael: People joke about what they call the "Manchin Cycle," which is where he makes a lot of noise about bipartisanship, criticizes the Democrats, maybe even wants to change a bill, but the end of the cycle is always him voting with a party on important procedural votes. And I think one way to read his statement is just like a prelude to this, so that he can vote to reform the filibuster more in sorrow than in anger sort of thing, right? Like, "Look, I am trying here."
0:48:13.1 Cody: Yeah, like, "Look what they made me do. I didn't want to, look, they forced my hand... "
0:48:15.0 Michael: Yeah, exactly, "Look, I'm doing my best but you're forcing my hand." Which is very similar to what happened with the stimulus, the COVID stimulus bill, which is like he put together a bipartisan group and they came up with a $600 billion bill, which is like a third of what Biden suggested, and they had one negotiation where it's clear things weren't in good faith and they moved on and that was it. And Manchin voted with the party. He was like, "Alright, that was a waste," so...
0:48:50.0 Cody: Yeah, it's like a series of just him constantly learning what it's like to try to work with Republicans.
0:48:53.6 Michael: Yes, that's right.
0:48:57.5 Cody: Like a gold fish, just constantly having to...
0:49:00.2 Michael: But it works for him, so... If we get there... I feel, I do, I feel good about this. I'm feeling optimistic. Maybe I'll have to eat those words, but you know.
0:49:09.8 Katy: Maybe.
0:49:10.3 Peter: I don't. I don't feel optimistic, but again, I don't know what the filibuster is.
0:49:15.1 Katy: I was gonna say, "Please elaborate. I need to be brought back down to earth here," but...
0:49:20.5 Rhiannon: It's weird, for my part, I just feel smarter now that I've learned a little bit about the filibuster.
0:49:27.1 Katy: I definitely feel smarter. It's strange. What are these feelings of hope?
0:49:32.2 Michael: Yeah, I know.
0:49:35.3 Katy: I say that jokingly, but it's kind of been hitting me this week. This conversation for sure, but COVID in general and where we're at and it's felt so long, like everything's a dead end.
0:49:49.3 Michael: It's sort of counterintuitive about this dynamic where I think it's almost easier for Democrats now with 50 votes than it was when they had 60. When you have 60 votes, it's like you only need one or two and so it feels like, it's like the carrot it's right there, just out of reach and worth going for, but here it's like the Republicans, they need to make a credible offer that they could get 10 or more votes for something. And if they come with 10 people, all it takes is one defector to scuttle it. So it makes it much harder for them to put up a credible argument that they are gonna be good faith negotiators and are gonna come together on a bill that can get 60 votes. It's just a much less persuasive position they're in, so they don't have that sort of... It's like a Kabuki show. And this is one that's just not... That's not the word, but I can't even think of what I'm saying 'cause I'm gonna go a different direction, but it's like a particularly bad Kabuki show here, when they try to say that they're gonna work in a bipartisan way. It's just like, "Alright, that's a fucking joke."
0:51:10.3 Cody: Yeah, I know, it's all political theater, that's all they...
0:51:14.1 Rhiannon: Exactly.
0:51:17.5 Michael: It turns out that having a very slim majority actually just puts a lot more pressure on the Democrats to just vote as a party and get stuff done and so far it seems like they might actually wanna do that, which is weird to say, weird to say.
0:51:32.8 Cody: Weird to say, yeah. Well, welcome, but very odd.
0:51:37.2 Katy: The words feel foreign in the mouth, but I could adjust to this. Yeah, this has been so informative and very interesting. You guys are awesome. While we have you in there, Cody, you got any questions you can lob at them? You know, Supreme Court questions? "Who's the worst one?" Or I don't know...
0:52:00.6 Cody: What is the Supreme Court?
0:52:03.6 Katy: Yeah.
0:52:04.3 Cody: I'm kind of curious...
0:52:05.2 Rhiannon: I got this guy, I got this one.
0:52:07.6 Cody: I'm curious, just like being lawyers, and online, and engaging all this stuff, you're gonna see a lot of very bad faith arguments against certain bills or cases and things like that. And I guess, just generally, is there one that really stands out at you? Like, yesterday, I saw... I'm sure you saw it too. Ben Shapiro was talking about how, like, "Actually, long lines isn't voter suppression. It's like Disney World." That's not ride suppression, it's like, that's just like nonsense and you think about it for more than one second, and you're fine. Like, leave it alone. But is there something like that that you've seen sort of catch fire? I know a lot of... Just in voting, a lot of the Republican talking point is like, "It's not that they don't want people to vote, it's that the Democrats want everyone to vote. They're gonna bring all these people and force them to vote for them." Is there anything like that about HR1 that you think is particularly bad faith?
0:53:05.9 Peter: I think that the real thing you learn when you dig into this stuff, is that, the distance between the Ben Shapiros of the world and the John Roberts of the world, is far smaller than you'd think. The Supreme Court jurisprudence on voter suppression is complete vibes work. They're just like, "Well, the states say that there's fraud and we should let 'em... We have to... That's their prerogative." And any peeling back that curtain, and you're just immediately, like, "Well, but there's not." Like, there's tons of objective reality that sort of puts the lie to this, and you'll never get past that.
0:53:53.4 Peter: When it comes to stuff like voter suppression, where one side has an incredibly obvious interest in suppressing the vote, and everyone knows what they're doing, and everyone knows that the voter fraud thing is bullshit, no one actually... Especially among the Justices of the Supreme Court, no one actually believes that there is significant voter fraud. And I think the one thing that I've learned from doing the podcast and reading more Supreme Court cases than I have since I was in law school, is that they don't have extra good reasoning. They're not about to blow your mind with their legal reasoning. It's just sort of a slightly more advanced Ben Shapiro and maybe not even that much more advanced. He went to Harvard Law. It's the same basic mind at work there.
0:54:45.5 Rhiannon: Yeah, absolutely. What's the difference between Ben Shapiro saying, "Long lines at the voter polls are like... At voting places, is the same as long lines as at Disneyland." What is the difference between that and John Roberts saying in Shelby County that racism isn't really a problem anymore in voting. There isn't a lot of distance between those things, and so...
0:55:07.9 Peter: Also, who thinks that long lines are not a problem at Disneyland?
0:55:13.8 Katy: It's a huge problem. It keeps me from Disneyland.
0:55:17.9 Cody: They have a specific thing so that you can skip the line, because nobody likes long lines.
0:55:21.9 Rhiannon: You can pay $300 and go to the front.
0:55:24.0 Michael: I don't know if you've ever been...
0:55:25.1 Katy: Also, that's a line for fun.
0:55:28.5 Michael: Look, I've been many times, 'cause I grew up in Florida, and every time there were rides, you'd be like, "I wanna go on that," and then you'd look at the line and be like, "Nope."
0:55:37.1 Katy: It's a deterrent.
0:55:39.2 Cody: Although, I will say that I feel like Ben Shapiro would actually support a law that says that you can pay an extra $300 to skip the voting line.
0:55:48.0 Michael: Yes.
0:55:48.2 Cody: He would definitely support something like that.
0:55:50.6 Peter: 100%
0:55:50.8 Katy: I mean, absolutely, also, if you're gonna make that comparison, keep the polls open till 10:00 like Disneyland, where people get to come later in the day.
0:56:00.5 Rhiannon: Exactly.
0:56:01.2 Peter: And imagine how bad it would be for Ben Shapiro if you waited for hours to vote, you got to the front, and there was a sign that said you must be this tall.
0:56:08.2 Katy: I'm so glad you did that. I was really, really hoping that's where you were going.
0:56:13.8 Peter: Well, it didn't quite fit, but I to get it in.
0:56:17.3 Katy: No, it did. It was really good.
0:56:20.2 Katy: Guys, this has been really, really fun, and I definitely would love to have you back. I feel like I'm on a first date and I'm like, "If that's cool with you, if you ever... "
0:56:29.8 Cody: Did it work?
0:56:30.5 Katy: Yeah, did you like me? I really liked you. I felt like there was a vibe, but no pressure.
0:56:35.5 Rhiannon: Absolutely.
0:56:37.0 Katy: Yeah, we would really love that. Can you just quickly share where people can find you online, share your Patreon, all that stuff, and we'll link it as well.
0:56:45.6 Peter: Yeah, we're on Twitter @FiveFourpod, all spelled out, FiveFourpod, and same place on Patreon, patreon.com/fivefourpod.
0:56:53.4 Katy: That's awesome.
0:56:54.7 Michael: Thank you so much.
0:56:55.5 Rhiannon: Thank you, guys.
0:56:57.8 Michael: 5-4 is presented by Prologue Projects. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.