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From the 2023-24 President

Georgia Bar Journal
May 2024, Vol. 29, No. 5

Voices of Democracy

If we are to agree with the political pundits, the general election this November will be one of the most consequential in our nation’s history.

Current polling numbers in the presidential race are a mixed bag, instilling both confidence and concern on both sides of this rematch of the 45th and 46th presidents who are seeking another term in the White House. If anything is close to a sure thing, it is the likelihood that the outcome will not be known until the wee hours of election night, if then—and decided by the electoral votes from a handful of swing states, including Georgia.

Congressional control is also at stake, given the current razor-thin majorities held by Republicans in the U.S. House of Representatives and Democrats in the U.S. Senate.

It is appropriate, then, that “Voices of Democracy” was selected as the theme for this year’s Law Day—promoted by the American Bar Association and observed annually on May 1 to celebrate the rule of law and cultivate a deeper understanding of the legal system. According to the ABA, this year’s Law Day celebration “recognizes that in democracies, the people rule. For nearly 250 years, Americans have expressed their political views and wishes by speaking their minds and voting in elections. In 2024, the United States will hold its 60th presidential election, and Americans will address fundamental questions about democracy and the rule of law.”

Law Day calls on the legal community to be part of the effort to encourage Americans to get involved in the 2024 elections by increasing their understanding of our electoral process; engaging in honest, civil discussions about the issues; taking advantage of early voting or turning out on Election Day; and helping to move our nation forward once the votes are counted and certified from a free and fair electoral process.

What we remember—and are still enduring—from the aftermath of the 2020 presidential election, teaches us there likely will be a repeat of the roadblocks to moving the nation forward. Richard Hasen, director of the Safeguarding Democracy Project at the UCLA School of Law, outlined his concerns during the National Constitution Center’s forum, “Democracy Checkup: Preparing for the 2024 Election,” held in March.

“I’m worried about the potential for violence,” Hasen said. “I’m worried about people not believing the results of the election because this is what we saw in 2020. … [I]t’s become so much easier to share false information about elections being stolen or rigged. We now have millions and millions of people who believe the last election was stolen or rigged, despite all the reliable evidence.

“[D]emocracy depends upon the people who are on the losing end, agreeing that the election was fair and square and agreeing to fight fairly the next time. So, I am worried about public acceptance of results. I’m worried about the potential for violence against election officials, against poll workers, against voters. We’re in a very volatile and polarized moment in our history. I hope that cooler heads will prevail and that we’ll be able to get through this period.”

Hasen also cited “a legal hole” that threatens a repeat of the last presidential election aftermath when Congress will gather to count the Electoral College votes on Jan. 6, 2025.

He said the hole stems from manipulation of a law dating from the 1870s called the Electoral Count Act.

“Congress fixed some of the problems with that act when it passed the Electoral Count Reform Act in December of 2022,” Hasen said. “There was also this very broad theory called the Independent State Legislature Theory. There was an extreme version of it that would’ve let state legislatures potentially put in an alternative slate of electors. The Supreme Court seemed to shut that down in a case called Moore v. Harper that it decided last term.”

But earlier this year, in Trump v. Anderson, the Supreme Court “left open the possibility that Congress could potentially try to disqualify an apparently winning candidate from having his or her electoral votes counted on grounds that the person participated in an insurrection and is therefore disqualified under Section 3 of the 14th Amendment,” Hasen said. “The Trump v. Anderson case involved whether states could disqualify candidates—in this case, disqualify Trump—but left open in a very kind of unclear way what Congress might be able to do and when they might be able to do it. So that’s another scenario … that I worry about in terms of legal challenges to the results in 2025.”

The Law Day 2024 Proclamation drafted for state and local governments to adopt declares that “despite more than two centuries of progress, our democracy remains imperfect.” In 2021, a prominent international report listed the United States as a “backsliding democracy.” Despite the pivotal role this year’s election will have on the nation’s future, many Americans have said they do not intend to vote—believing that their votes do not matter or fearing that they will be ostracized or even harmed physically or economically if they speak their minds on the candidates and issues.

The Proclamation adds: “[M]embers of the legal profession should lead the way in promoting democracy by taking individual responsibility not only to speak up and vote but also to find the courage to listen, to respect and to agree on paths forward toward a more perfect union.” This is one way that we can help ensure that our government remains responsive to the wishes of the people.

In addition to the Law Day promotion of protecting democracy, the legal profession is taking action at a high level. Last August, the ABA launched a task force to improve voter confidence in elections by addressing these and other challenges related to electoral integrity and to remind voters that their vote counts.

The ABA Task Force for American Democracy is chaired by former federal judge Hon. J. Michael Luttig and former U.S. Homeland Security Secretary Jeh Johnson, currently a partner with Paul | Weiss in New York and Washington, D.C. The State Bar of Georgia is ably represented on the task force’s leadership team by its Vice Chair Bill Ide, of counsel with the Atlanta office of Akerman LLP and a past president of the State Bar’s Young Lawyers Division. The task force’s membership includes attorneys, retired judges and other national leaders inside and outside of the legal profession.

The mission of the task force is to: (1) inspire and mobilize America’s duty-bound legal profession to actively support and defend American democracy, the Constitution and the rule of law; (2) ensure that lawyers are educated and held accountable to their professional obligations to support and defend our democracy, the Constitution and the rule of law; and (3) leverage the legal profession to educate the public on the reasons for, and the importance of, democracy and the rule of law.

“Lawyers actually are uniquely qualified and uniquely positioned to support and defend our democracy, our Constitution and our rule of law,” Luttig said in an interview of the co-chairs with MSNBC last year. “Lawyers take a pledge and an oath to support and defend the Constitution of the United States, against all enemies foreign, but also domestic—if not especially domestic.”

Johnson said an important part of the task force effort is going to be to remind Americans that their vote counts, and their vote matters. “Their vote is important, and their vote is the essence of democracy,” he said. “And democracy is the root of everything else that we enjoy in this country.” You can find out more about the Task Force for American Democracy and supporting its work on the ABA’s website, www.americanbar.org.

For the Law Day observance, ABA President Mary Smith wrote, “When our founding fathers convened to write the Constitution [more than] 235 years ago, they set in motion an experiment that changed the world. America would not be a land of kings but a nation of laws. Since then, generations of Americans have worked to defend and improve our system of laws and to ensure that the laws are applied equally and justly. ... Today, our nation and world are at an inflection point. At home and around the globe, autocrats and dictators threaten the rule of law. Our democracy is under strain. We must all use our voices to maintain our system of laws and to ensure that our democracy, as conceived, endures.”

The stakes in this year’s elections could not be higher. The future of our democracy depends on voters being confident in our electoral system. I encourage all Georgia lawyers to uphold our responsibility to lead the way in promoting and protecting the principles of our Constitution and do our part to ensure that our elections at the local, state and national levels are free and fair so that our country can move forward.