Funding for “To the Contrary,” provided by: Coming up On “To the Contrary,” a conversation with the head of the NAACP Legal Defense Fund Janai Nelson, about the importance of lawsuits now roiling the U.S. and state courts designed to stabilize or destabilize the right to vote.

Hello, I'm Bonnie Erbé.

Welcome to “To the Contrary,” a weekly discussion of news and issues from diverse viewpoints.

We are headed into one of the closest presidential elections, if you believe the polls, in recent American history.

The Trump campaign has brought literally hundreds of election- related lawsuits and lost more than 60.

Many of these cases have clear echoes of the 2020 presidential election, seeking to raise what mainstream media outlets call unfounded fears of voter fraud or non-citizen voting erode confidence in mail-in and absentee ballots, or encourage baseless non-certification of eventual election results.

There are others to address legitimate concerns of voter disenfranchisement or steps that may need to be taken to advance free and fair voting, counting and certification of the votes.

Janai Nelson is president and director counsel of the NAACP Legal Defense Fund.

It is often described as the nation's premier civil rights law organization fighting for racial justice and equality.

She is here to answer questions about the most important of these lawsuits.

Welcome, Janai Nelson, we are thrilled to have you.

Thank you and thrilled to be here.

So let's start with several of the more important cases that are going through the court system right now, including the one in Georgia, that has to do with hand-counting of the ballots.

Yes.

Well, there are a number of lawsuits in Georgia, and one of them that we're involved in is about the changes on the Georgia election board and how that election board, which is heavily populated with partisan operatives, how the rules have changed to enable that board to take an outsized role in the potential outcome of the election in Georgia.

So we are challenging new laws that just came into being in the past couple of months that we have vehemently opposed since the spring because they introduced an element of uncertainty, of discretion on the part of these political operatives that we think could be wielded against our democracy and wielded against the will of the voters.

Now, why do they not have the power to do what they did, one of which would be the hand-counting of ballots as opposed to machine counting, which is much faster?

What they did effectively was to insert this very squishy concept of a reasonable inquiry.

So now a person on the Georgia election board can raise what they call a reasonable inquiry, even though nobody quite knows what reasonable means in this context.

And for a counting of the ballots, interrupt the canvasing of ballots in a way that can be disruptive to a tabulating the votes in the outcome in a timely way, the outcome of the election in a timely way.

And also what we're deeply concerned about is confusion and doubt about the validity of the election and it offers an opportunity for misconduct to occur.

And so those are very important concerns about the integrity of the election before this new law came to pass, which I should note is not only being challenged by civil rights groups like the Legal Defense Fund, but in fact, the attorney general of the state of Georgia has been asked to opine on this and has expressed concerns that this actually violates Georgia's state's law.

So what we are most concerned for.

Yeah, he actually advised the electoral board before it even voted on this, telling them that it was not legal.

That's right, that's right.

So what we're facing in Georgia's elections right now is an election board that is operating in contrary principle to state law in Georgia.

And under this cloud of doubt and concern that these were not innocent intentions on the part of the Georgia election board, but rather a very direct and frankly unveiled effort to introduce election interference into this process before they change the rules in this regard.

It was a pure ministerial function for the Georgia Election Board to certify the election, to validate the canvasing of ballots.

This was a formality.

They've now inserted themselves and empowered themselves in ways that are very dangerous.

Where do they think they get the power to do this right?

They don't even have the power to do it.

Correct.

That's right, that's right.

They simply changed the rules because they are a majority.

And this is what happens when you put political operatives in the role of election administration and you allow those viewpoints and those, that animus to change how we conduct our elections.

Do you believe that this was put into law by the elector, or attempted to put into law by the electoral board, particularly to target Black voters and possibly other voters of color?

Well, we've certainly talked about the impact that these changes could have on Black voters.

And we know that Georgia is a pivotal state that has a significant number of Black voters from the year of 2022.

From the year 2000 to 2020, Black voters in Georgia accounted for a sizable increase in the electorate in Georgia.

So the Black vote in Georgia is quite significant.

It is powerful.

We know that there are lots of efforts to turn out Black voters, and we can't help but be concerned that there may be some intent to disenfranchise Black voters.

But at a minimum, we're certain that this will have a negative impact on Black voters, regardless of what the intention is.

And do you believe the case will be resolved before Election Day?

It is our hope.

We've certainly pushed for expedited review of these questions, and this should be resolved before the election, because no one wants to go into this election with the uncertainty about how ballots will be counted after the fact.

It is important that these decisions are made before, before there's any suggestion about who might have come out ahead in any of the elections, not just at the presidential level, but also on the state and local level elections.

So it's very important that these types of questions are determined before they seem outcome driven.

And that is what we are pushing for at LDF.

But is there anything in the law that requires a quick ruling by a court?

Yes.

You can seek expedited review on election issues where there's a requirement to have some certainty.

So we are using all the tools in our arsenal, including injunctive relief, which requires the court to act more swiftly than it ordinarily would.

Do you think there will be a decision before the the November election which is creeping up on us?

I do.

'm very hopeful that there will be.

I think the courts understand the importance of having these questions determined and having guidance for the Georgia Election Board and having any taint of illegality removed before the election is fully completed.

It is already underway, but before it's completed.

In my home state of Virginia, there is, there were 6,000 voters purged from the voter rolls.

And that's being challenged legally.

Tell me, and in other states.

So please tell me about the use of that tactic.

Unfortunately, we are seeing efforts across the country to purge voters from voter rolls under many guises.

There are allegations that there are people who are not citizens who are attempting to vote.

There are allegations, very completely unfounded ones of voter fraud that are undergirding some of these efforts.

What we know to be the case because this has been articulated by many, that there's a fear that all eligible Americans will exercise their right to vote, and some people are fearful of what the outcome could be.

And so there have been efforts at the state level to suggest that states conduct list maintenance, which is something that states regularly do.

But there's now a push that they do that within weeks of the election, which has the potential to push voters off of the voting rolls without there being just recourse.

If there's an accident by the state and they take people off the rolls and they do that incorrectly or erroneously.

In North Carolina, there's an effort to force that state to engage in list maintenance in under 30 days before the election.

This has the potential to wreak havoc and insert absolute chaos into the election process.

Tell me about other states, other methods that some states are using or trying to use to suppress voter turnout?

Well, LDF has a lawsuit in the state of Alabama that I think should concern many people because it targets some of the most vulnerable in our population and in our electorate.

It is a lawsuit that challenges efforts to keep people who are blind, otherwise disabled or illiterate from getting assistance that they have the right to under the Voting Rights Act in order to cast a ballot.

Section 208 of the Voting Rights Act provides that if you have a disability, you have the right to seek assistance in casting your ballot.

This doesn't mean that anyone is voting for you.

It doesn't mean that anyone is suggesting how you should vote.

But if you need assistance in filling out your ballot, if you need some other aid to allow you to exercise your right to vote, you are entitled under federal law to have that.

But unfortunately, we see in the state of Alabama that there are efforts to prevent people who need that assistance and need that help from getting it.

We thankfully already got a ruling from a district court judge saying that the Voting Rights Act absolutely guarantees this right and that these efforts are contrary to law.

What is Alabama doing to try to fight back against attacks on this lawsuit?

It really is taking the force of civil rights groups to do that because the state of Alabama is acting in some ways in concert with partisan actors that are attempting to make sure that this bill, Senate Bill 1, is enforced.

This was a bill that was passed in Alabama to disenfranchise its disabled voters.

And it takes the force of civil rights groups to say that is incorrect.

That is contrary to federal law.

How about laws that have been enacted to shorten the deadline for mail in ballots or, or other, you know, non voting on the day of the election?

Yes.

We see that there are efforts to shorten those time periods for early voting.

We are concerned about ways in which mail-in voting or absentee ballot rules have become more constricted.

We know that since the 2020 election, in many states, people are voting under conditions that are more stringent, that are much stricter than they were in 2020, which is why you see such a significant and robust election protection apparatus and a voter education effort across the board, among civil rights groups and non-governmental entities to make sure that people understand the new landscape, that they are not deterred by these laws because they can still lawfully cast a ballot.

They just need to know how to navigate this now more complex system.

Other ways that you see of attempts to suppress the vote.

Well, one of our biggest concerns is how different states are treating the reaction to the very unfortunate natural disasters that we have experienced as of late.

I'm speaking of the devastation wrought by Hurricane Helene.

I'm thinking about what we know could be potentially cataclysmic results due to Hurricane Milton.

We were able to secure, through our advocacy and the advocacy of many others, an extension for the voter registration deadline in the state of South Carolina, which suffered some devastation due to Hurricane Helene.

We are actively litigating a case in Georgia, along with our colleagues in the field, and we are seeking similar accommodations for voters who are experiencing some of the most dire consequences as a result of climate change and this natural disaster event they don't have access to county election offices.

They may be facing damaged roads and thoroughfares that may not enable them to get to the places that they need to access to register to vote or to request an absentee ballot.

And all of this chaos, really, is something that one we should have plans for.

We know that these natural events occur, but even after the fact, these are ones that should be automatically accommodated by any state that takes election seriously.

But that might delay in turn the counting of the electoral votes for the Electoral College.

Obviously it's important that everybody gets the right to vote.

And natural disasters are becoming more and more frequent because of climate change.

But on the other hand, it's going to take years to rebuild roads in North Carolina and, you know, destroyed voting polling stations and all the rest of it.

How do you do you think it could go on that long?

The delay could go on that long?

I don't think that the delay would endure for years at all.

Or I don't think that any of these basic accommodations that we're seeking would compromise the deadlines for certifying this election, necessarily.

I think that states can take basic measures, like offering absentee ballots for people who live in areas where they are unlikely to be able to access a polling site.

They may not have applied for an absentee ballot, but they are eligible voters.

We know that the conditions arent conducive to them getting to the polls.

So why wouldn't a state offer them the option for an absentee mail-In ballot?

Why wouldn't states try to go to remote areas that may be devastated by natural events to canvass and get those ballots, and make sure that they are ultimately turned in and counted?

There are ways that we can enable people to participate in this process.

Because you're a victim of a climate event, does not mean that you should be disenfranchised and denied your vote.

And it really is incumbent upon state officials to do everything within their power to make sure everyone can vote.

And let's turn for a short time to the Electoral Count Act, which was proposed by a bipartisan pair of senators in the U.S. Senate and signed by President Biden into law in late December of 2022.

Tell me about what that does to make sure there is a count by a certain time and to avoid the chaos that ensued after the 2020 election when rioters tried to take over the U.S. Capitol and other such things.

Well, I'm so glad that you noted that the Electoral Count Reform Act was a bipartisan piece of legislation because we don't see enough of that in this arena.

But I think everyone understood how critical this legislation was.

The Electoral Count Reform Act reforms the Electoral Count Act from the late 1800s.

So this is a law that has not been updated in about 130 years.

The events of the last presidential election made it crystal clear to people across ideologies that we needed to have a clear set of rules going into this general election about how to count the ballots and certify the election, whose responsibility it was ultimately at the state level.

And that's what the Electoral Count Reform Act does.

It does a number of other things by cleaning up, some ambiguities in the statute, but primarily it makes it very clear who the state executive is, who must certify the elections.

And that important responsibility rests with the governor of each state.

So it makes sure that governors are being held accountable and that there's a clearly identified executive, who is charged with this all important duty.

It also makes clear that there's a specific timeline by which we need to have certification completed.

And how does that dive with what we were just talking about, which is, for example, needing delays in voting, you know, in mail-in ballots and in person, if necessary, or if polling stations are destroyed by the hurricane.

And meeting that deadline, it's only a little more than a month, a month and 10 days, 12 days after the election itself.

That's not a whole lot of time to get people whose lives have been destroyed by a storm to be able to vote.

That's exactly why we're asking that the accommodations that need to be made on the front end get made now.

So extending the deadline to register to vote and providing alternative means for individuals to cast ballots.

Some states require you to have a particular excuse or reason to ask for a mail-in ballot.

In cases where there have been natural disaster events.

We should dispense with those requirements and allow people to ask for a mail-in ballot in the same way that we did during COVID.

We understood when we were facing a national or international pandemic that we need to make accommodations in order to have a free and fair and timely election.

So knowing a few weeks into the election period and out from Election Day itself, we can begin to make some of those accommodations.

We can also say that in places that have experienced these natural events, if there are mail-in ballots that come in a day or two after Election Day, and that state's law says that we close our ballot counting on the day of election, that's something that the state can amend now and can say, we recognize that a number of ballots may come in through the mail because our post office is closed, because the mail is delayed, because someone wasn't able to get to a mailbox in time, and they can extend it by 48 hours or whatever they think the appropriate time would be.

But it's important to do that on the front end because that makes it certain that this is not about outcome.

This is about fairness.

This is about process.

This is about enabling Americans to vote.

Let's talk a bit more about the Electoral Count Reform Act, which is that it essentially sets up a system where certification or approval of the vote goes to the governor.

Then it can be appealed to a panel of federal court judges and then up to the Supreme Court ultimately.

Would it be wrong to assume that the Supreme Court, where we'll end up, where Bush v. Gore in 2000 ended up, will be decided in favor of the Republican because there is a majority of Republican appointed justices on the Supreme Court?

I have to say that as someone who is still a believer in the sanctity of the institution of the Supreme Court, I have to believe that the justices of the Supreme Court in this moment of existential democratic crisis, with the hindsight of Bush v. Gore, would know to do the right thing, whatever that is, and however that impacts the outcome of the election.

But the right thing is to validate the votes and the fair and free election that has occurred in this country.

Regardless of what the outcome would be.

But you say, especially in view of Bush v. Gore, and yet that case was decided by a majority Republican appointees to the Supreme Court, in favor of the Republican candidate for president.

And in fact, a vote count, recount in Florida, which was the deciding state at that point, showed that actually, Al Gore, the Democrat, won that election by 500, won that state by 500 votes, and therefore the Electoral College.

So what makes you think this even more conservative Supreme Court, greater number than in 2000, in the majority, would do any differently?

We have seen the public confidence in the court erode ever since the Bush v. Gore decision.

I think we've learned, at least as a public, about how important it is for the court to remain neutral in these types of decisions.

And all eyes will be on this Supreme Court to see if there is a repeat of Bush v. Gore, which many hold to be an erroneous decision of the court, a decision that eroded public confidence and that suggested that the court might be a full fledged political actor.

But all I can say in this moment is that I still hold the Supreme Court to account, not to be a political actor, but to act in the best interests of the American people and the country by upholding the Constitution and upholding the rule of law.

Understood.

But the holding them to account.

How does that happen?

What if they make a blatantly political decision?

And there are several justices up there who, from following their legal careers, I would wager that they would not care about, you know, what it does to the court's reputation.

Yeah.

And listen, Bonnie, you may be right.

I think we have every reason to believe that there's some real truth and valid concern in what you say.

All I can say is that that is not the function of this Supreme Court.

That is not what it is charged to do.

That's not what its constitutional mandate is.

The justices have to be keeping in mind, what might await them on the other side of this election if they erode the public's confidence as much as they already have with yet another devastating and potentially illiberal decision.

All right.

Thank you so much, Janai Nelson, head of the NAACP Legal Defense Fund.

In two weeks, we interview a former legal advisor to the Trump White House on similar questions.

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