By Jack Rodgers
Law360 (August 11, 2022, 4:42 PM EDT) -- Andrew Herman, the new leader of Lawrence & Bundy LLC's political law group, has represented a number of high-profile clients in his nearly two-decade legal career, including Major League Baseball before the House Government Reform Committee and former
New York congressional candidate Jack Davis before the U.S. Supreme Court.
But for Herman, his efforts to fight restrictive election laws are the most important of his pursuits — the Lord's work, as he calls it. For almost four years, Herman has represented voting rights group Fair Fight Action to challenge a number of restrictive election laws in Georgia, and he told Law360 Pulse that he felt a pending decision in the case could set the framework to challenge restrictions in other states.
Before landing in Atlanta-based Lawrence & Bundy's office in Washington, D.C., this month, Herman spent nearly a decade with Miller & Chevalier Chtd., where he represented clients before congressional ethics investigators and in federal court. Before that, he practiced for more than 14 years with Brand Law Group.
Law360 Pulse recently talked with Herman about his work on some of the most closely watched election litigation in the country, and the future of voting rights in both Georgia and beyond, as the nation wrestles with a flood of disinformation about election theft and security.
This interview has been edited for length and clarity.
How did you first get interested in election law, and what inspires you to continue challenging these election restrictions?
I grew up in Washington. My dad worked for the federal government, and he was an old school Kennedyliberal. I'm sitting in my office right now, and I have two of his old busts of [John F.] Kennedy, and I have a Franklin Roosevelt bust. It's old fashioned, but he came from a time where the federal government was viewed as a force for good. I've always loved politics, I loved D.C., and when I went out to law school in California, I sort of knew I wanted to come back to Washington.
When I did come back in the late '90s, I was lucky to find myself working at [Brand Lowell & Ryan, a predecessor of the Brand Firm] where my boss had worked on the Hill for a long time — he'd be counsel to the House of Representatives, he worked for [former Speaker of the House] Tip O'Neill for many years. That was our sort of ethos — that government, in particularly the Congress, was the first branch,
and that's what really mattered. So, whether it was doing ethics stuff or campaign finance or representing nonprofits or whistleblowers, it's always what made my heart beat a little faster.
When I was fortunate enough to get involved in the Fair Fight case, it was such a unique opportunity to do that type of voting rights work on the federal level except now in a state that is changing and really dynamic. The action has really moved further away from Washington to some degree in the last 20 years. Unfortunately, our government as a whole, and Congress in specific, has gotten more and more
gridlocked. And now the action is in places like Georgia where the population is changing and the elections are incredibly competitive and the law is incredibly dynamic. I feel fortunate that I've been able to turn my attention to that.
Can you talk about your ongoing challenge to voting restrictions in Georgia? Why is this work so important right now?
The fundamental challenge, I think, of our time is figuring out how we're going to continue to have free and fair elections in such a polarized environment. There is a sentiment among some people that the elections can't be trusted, and I think that part of the importance of this work is vindicating our elections system and making sure that we preserve the things that have made this country the incredible
democracy that it has been for [over] 225 years.
We're at a time right now where there's just so much cynicism about the election system, and I think one of the ways that hopefully you counter that is by advocating for access for everybody. Unfortunately, we have become so polarized. I wish I knew the answer to that, but I don't think anyone knows the answer to that right now.
The only thing I know how to do is to keep putting one foot forward and try to make sure that we have a system that works for everybody so that, when that fever hopefully breaks, we'll have preserved the things that make this country great, which are free elections and access to the polls for everybody.
Do you believe the work you do challenging restrictive election laws, like your litigation in Georgia, is helping combat disinformation about elections?
I do truly believe that we are doing the Lord's work in ensuring that the way that elections are conducted on a state and federal level is done appropriately and constitutionally. I do hope that, as time goes on, the country as a whole will come back together and recognize how important our election
system is and how important it is to preserve that. It's a very dangerous thing to start talking about how elections are rigged and stolen.
I'm optimistic, because how many lawsuits did the [Donald] Trump campaign file? Like, 60-some and they basically lost all but one. At this point, the courts are the bulwark against all of the atmospherics about elections in this country, and we're going to need to rely on them, and we're going to need to rely on lawyers.
What's your opinion on the independent state legislature theory that the Supreme Court is expected to hear in its upcoming term? How would a ruling in favor of that theory affect elections in the U.S.?
I think that any real expert in the area of election law feels like that doctrine is on very shaky ground. You cannot write out the state court system as an essential element in making these determinations. It's never been done.
The questions that would be before the court there would be whether the state legislatures have to essentially follow what the state courts would say, and I think that the underlying theory of the doctrine is that they would not — that the state legislatures would be the ultimate determinant of what the state
election law would be.
Again, I hope that the bulwark against that holds, and I don't think the Supreme Court would go so far as to say that state elections don't have to comport with federal law and that ultimately federal courts would have to get involved. I also hope that the amendments to the Electoral Count Act will to some degree shore up that system and at least ensure that states don't try and change the laws after elections occur.
Can you give me an update on the Fair Fight lawsuit? Do you see the case as a barometer for other challenges to restrictive election laws in other states?
We had a trial over the late spring into the early summer, which took close to two and a half months, although there were some significant breaks. The main issues there were the treatment of absentee ballots, the way that the state maintained their voting records, and other related issues to how they dealt with citizenship, and felons and matching of ID. Those were the main issues that survived summary
We're awaiting a decision from the court, which we hope is imminent. The court's been conscientious about moving this case along and has recognized that an election is approaching. So we're cautiously optimistic that we'll get a result soon, and we're cautiously optimistic that it'll be positive in some or all aspects of the case, but of course we can't make predictions.
I certainly hope that this is a model that Lawrence & Bundy and others can export to other jurisdictions, because similar rules are on the books in other states and there's significant disagreement about voter ID and how strictly that should be applied to control access to the polls.
--Editing by Nicole Blei
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