MAGA Republicans are ramping up their attacks on voting rights ahead of the midterms.
The two biggest threats being the SAVE Act in the Senate and Louisiana v. Callais in the Supreme Court. The SAVE Act would require voters to show a passport or certified birth certificate and a photo ID. According to the Center for American Progress, over 146 million Americans do not have a valid passport, and 69 million married women, who changed their last name, do not have a matching birth certificate. If SCOTUS rules unfavorably in Callais, the future of the Voting Rights Act will be in peril.
Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joins Jen to break down the plethora of civil liberties at stake.
Janai Nelson is the President and Director-Counsel of the NAACP Legal Defense Fund (LDF), the nation’s premier civil rights law organization fighting for racial justice and equality. Nelson formerly served as Associate Director-Counsel and as a member of LDF’s litigation and policy teams. She has also served as interim director of LDF’s Thurgood Marshall Institute and in various other leadership capacities at LDF.
The following transcript has been edited for formatting purposes.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief at The Contrarian. We are delighted to have back with us Janai Nelson, who is the premier civil rights attorney in the country. She is the President and Director of Counsel at the Legal Defense Fund. Hello, how are you?
Janai Nelson
I’m well, Jen, how are you?
Jen Rubin
I am as good as can be expected in these troubling times. Last time we spoke was just following the oral argument which, you, conducted in Calais. We have yet to hear from the justices. We don’t know why, we never know why there is a delay. If they were to have a ruling, that in some way either curtailed or struck down in its entirety, Section 2, How at all would that infect the 2026 elections? There is this principle that they’re not supposed to throw elections into chaos at the last moment. Talk to us a little bit about whether we’re too close to the election, at least for any potential decision to impact this year’s midterms.
Janai Nelson
So, what’s really interesting about this is that we’re dealing with two variables. One is that Purcell is just a principle. It’s actually not a firm legal doctrine that requires, the courts or anyone to do something, right? To either stop any election change from going forward, or to allow it to go forward. It’s always been coined as a principle, so not a hard, fast rule of law. Which means that there’s give and there’s unpredictability there. If we follow the court’s trend, however, the court has typically said, you know, that anywhere between, you know. weeks or months leading up to an election is too close to change something that’s terribly significant. In the very case that, was the foundation of the oral argument that I did in October, there was a whole gestational period of time— a 9-month period of time.—where the court said no changes could be made, and this was leading up to the 2022 elections, no changes could be made because it would be too disruptive. And that was a 9-month window.
We’re well into that 9-month window, so if the court wanted to use that as precedent, then we know that no changes should be made. That said, we’re not sure what this court might do, and it also may not restrict state legislatures from electing to change their plans, right? So it may be that a court can’t impose a new plan, but it could be that state legislatures rush to a special session, try to engage in this off-cycle redistricting that we see happening happening for other reasons, for purely partisan reasons, across the country. That’s the legal variable. And then, I mentioned what I think is the second variable, and that is that there are no rules anymore in this game of redistricting, right? So, we’re seeing states across the country engaging in, you know, new districting right now. We know that you can call a special session at almost any point in time if there’s enough votes. So, there’s really a degree of unpredictability in this moment that’s just quite unprecedented in the area of redistricting. So, my short answer is who knows?
Jen Rubin
That, that is a fascinating and deeply troubling response, because of all things we expect in elections there to be a certain certainty, for candidates, for voters, for lawmakers. And what you’re describing is kind of a legal chaos system, that if you’ve got the votes, you can mess around and confuse people people will wind up going to the wrong place to vote, people won’t know what the date is. That really seems to be counterintuitive to way elections are supposed to work.
Janai Nelson
Absolutely. We want people to walk into this election process informed, armed with the knowledge of where they should go, what ID or other requisites there are in order to cast a ballot that will be counted, who they’re voting for and within what district lines, if it’s an election that has candidates based on a districting system. All of that information, we’d like to be available to voters as early as possible so that we can have an informed electorate, they can do the research that they want or need, they can, you know, gather their friends and go to the polls, and we can make voting a truly meaningful experience for for American citizens. But instead, right now, we do have a degree of chaos that, frankly is not necessary, and that, I hope will abate. Although those are just hopes at this point. But I hope we’ll abate before the election, because right now there’s too much uncertainty.
Jen Rubin
Absolutely. Speaking of uncertainty, mail-in ballots, have, become unbelievably a controversial issue. Didn’t used to be that way. Both parties have always had very robust mail-in ballot procedures. Most states have no excuse, mail-in voting. Those that do have a whole list of acceptable excuses, that you can use. We have military people who, vote absentee. And yet, this decision came to the Supreme Court for all argument that questions that whether a state can have a rule that says, so long as the ballot is cast on or before Election Day. it doesn’t really matter when it comes in. If it comes in the day later, two days later, three days later. And… The argument seemed to be that somehow there’s something wrong with that, that it violates some principle.
The only principle I know of are very old federal statutes that say this is the election day. There’s nothing in there that says about counting the day. There’s nothing in there that says you can’t cast your ballot before the election day, because if that were to be the case, then what, you couldn’t have early voting? So what is this case really about, and why were the justices so intent on raising issues that seemed to be ones of perception, or policy, or controversy? It was frankly bizarre.
Janai Nelson
Yeah, it really was, because this is a long-settled principle in practice, that, we allow for early voting, we allow for mail-in voting for our military, who are often overseas, and We understand that Election Day is important. You have to have some certainty as to when the election period is over, but by counting ballots that are postmarked on Election Day, it doesn’t give anyone any extra time or any extension of right. We are all dealing with the same deadline, but we’re allowing for the reality that some votes, if they are cast by mail, will take a few days to actually arrive at the, polling precinct, or at the, you know, at where they’ll be ultimately counted.
And so, that to me, is a very common sense principle. We’re all facing the same deadline. We all know that if it’s not postmarked or cast in person on Election Day, the vote won’t be counted. So, it really is a question of, are we going to allow people who either live far from polling sites, because of their military service, or being rural voters, or are somehow disabled or unable for any number of reasons to get to the polls if we’re gonna give them the same courtesy of being able to deliberate through Election Day.
And the reason why that has real practical consequences is that, as we all know, candidates are still trying to woo voters for their ballots and for their preference. leading up to Election Day, there are sometimes late-breaking developments with respect to a candidate and their suitability for office or, you know, the particular policy preferences that a voter may have. All of which continue to be developed and aired through Election Day. So there’s a real practical consequence when you end Election Day earlier for some voters and not for others. That creates a wholly unequal system, and what we see happening in that case, where the RMC is suing the state of Mississippi to change its laws, which would ultimately impact about 18 states across country that allow for ballots to be count so long as they’re postmarked on Election Day is truly, in my view, an effort at increased voter suppression. They’re trying to keep You know, more ballots from being counted, which shrinks our electorate, shrinks our influence on who governs us, and really shrinks and compromises the integrity of our electoral process.
Jen Rubin
It’s confusing, because we’ve had this system that, essentially, states are in charge of the administration of elections. So, going back a step, I have a question as to what the federal government is doing at all, telling states how they schedule their early voting periods. On what basis would the federal government even do that? States are allowed to set all kinds of early voting periods and counting. What if a state has for example, decided to have hand-counted ballots, and it takes a week for them to count those ballots. Does that get invalidated, too, because they’re not counted on Election Day?
Janai Nelson
Yeah, it’s a really, really good question, because it’s a slippery slope. Once we start deciding for states, what their Counting procedures can be, what accommodations they can make for voters who are in different circumstances, we then start encroaching on states’ abilities to determine the time, manner, and place of elections. And that is a constitutional right, that is something that we have, you know, Accepted as, as, as sacrosanct for very long.
And I’m very concerned that this will open a Pandora’s box of, you know, unpredictable outcomes, as you suggested, because it deals, as you said, potentially with early voting, it implicates the postmark of people who are away, and then ultimately, what happens when there may be some delay for, let’s say, a natural disaster. Any other intervening event. does the federal government now, or a political party more disturbingly, have the opportunity to come in and manipulate how those votes will be cast? What we want is a fair principle that applies across the board to everyone, and that is allowing votes that are cast by Election Day to be counted.
Jen Rubin
One of the arguments, and forgive me if I’m identifying the wrong Justice, I think it was Justice Kavanaugh, said, well, what about this problem that if it takes so long for the ballots to come in, people will suspect there’s fraud? I don’t know what legal principle that would be, and people could have all kinds of conspiracy theories based, even if you count that day. Cities tend to return their results later than rural areas in many states. They could suspect fraud there. Why is a Justice of the Supreme Court worried about conspiracy theories and how voting is perceived?
Janai Nelson
Yeah, I have to say, that was one of the more alarming lines of questioning, because it is true, while I do think it’s important for justices to be aware of real-world consequences. They can’t be motivated by, what is ultimately a manipulation of fact. What the justices know for sure and for certain is that voter fraud is virtually non-existent in this country. And so, to… Even consider the idea of changing a law or a rule based on the false narrative and conspiracy theory of voter fraud is beyond me, frankly. I don’t see why it would have any, place in an oral argument, and certainly not in a judicial deliberation or opinion. So I hope that’s the first and last we hear of that conspiracy theory.
But the reality is that if we just take a clear-eyed view of what we’re talking about here, there’s no reason to suspect fraud. If we have a postmarked date. This is something that has been going on for a very long time, and there’s never been a concern about fraudulent ballots on the basis of them being counted after Election Day, or arriving after Election Day. And in fact, as many people have pointed out, Donald Trump, who’s been a vociferous opponent of this in recent days has voted by mail, almost, incessantly for his past voting history. So we need to look at what people do and the trust that they are putting in this process, and then ask the question as to why they don’t want others to be able to avail themselves of the same possibility and opportunity.
Jen Rubin
I want to shift gears, but actually not that much, since we’re talking about the same topic, to the so-called SAVE Act. Republicans have been conducting those semi, kind of, filibuster, trying to get this passed through. You’ve spoken out, very strongly, other, voting rights groups have spoken out, that this would essentially disenfranchise tens and tens of millions of Americans, women who had changed their name. So their current name doesn’t match a birth certificate or a passport. Hundreds, over 100 million Americans don’t have a passport. All kinds of other, impediments to voting. It does not appear that the Republicans are willing to break, their filibuster over this.
First question I want to ask you is, there has been a very, very strong response from the democracy community and the voting community that has been somewhat gratifying and heartwarming to see. I don’t want you to put your, self in their shoes, but I don’t know that they were expecting this kind of response. Somehow, they thought this was going to be, like, a political winner for them. And the response in public has not been that. Are you, surprised, gratified? What’s your observation in terms of just the public discourse over the SAVE Act?
Janai Nelson
Well, I think there are a couple of upshots. One is that people… Are recognizing the power of their vote because of the enormity of the tax against it. Right? So I think people are understanding if folks are willing to go through all of these shenanigans to try to suppress my vote, they must fear it. And it must hold some power. So this is a great awakening for many voters, especially those who may be somewhat apathetic or, you know, feel like the political process can’t really produce results. If it couldn’t, they wouldn’t be pushing this type of legislation to try to effectively steal or stop your vote. So that’s one thing.
I’m also heartened by the growing response around this. I will be gratified once these acts, the SAVE Act, the so-called Make Elections Great Again Act, and the Save America Act, once all of these dastardly voter suppression laws are put to bed. And I’ve been calling the SAVE Act the Stop All Voters Everywhere Act, because that’s effectively what it does. It will stop the 146 million Americans who don’t have passports. Potentially from voting. It will stop the 70 million women largely women, but any person who changed their name and it doesn’t match what’s on their birth certificate from voting. It can stop nearly half of all Black Americans under 30 who do not currently possess an ID that has their current name and address from voting. Now, it doesn’t mean that any of these folks don’t have adequate ID. They do. They just don’t have that very narrow band of IDs. that the SAVE Act is saying are the only ones that you can use to lawfully register. And I want all Americans to understand what this means in terms of compromising our democracy. You know, for rural voters who may live far from election offices and cannot easily register in person, or people with disabilities and older voters. who may not be able to register in person. This hurts people across the board, and it’s something that we must demand that the Senate vote down.
Jen Rubin
It’s also noteworthy that, once again, they’re attacking, and there have been various amendments on, mail-in ballots, a requirement that you have to make a video, a, photocopy, and probably half the voters don’t know what a photocopy is at this point, of your, identification. So, if you can’t get out to vote. how are you supposed to get out to find someplace that you can make a photocopy of your identification and send it in? At some point, it becomes, rather preposterous.
I want to ask a related question as we wrap up. Now that Republicans are seeing the handwriting on the wall, they may be dropping this, and through what we’ve seen before, the so-called budget reconciliation process, try to jam some of these provisions in there. And the theory would go is, oh yes, it’s supposed to be about taxing and spending, so what we would say is a state loses all of this money unless they do these very same things that we wanted them to do under the SAVE Act. Is that any constitutionally better than the original mandate that you have to do these things?
Janai Nelson
Yeah, you know, this would not be a true reconciliation, policy or change. So, it should be rejected out of hand. Even if it’s voted on, it should not be, registered by the clerk. This would be an end run around the Constitution. This would be an end run around the procedural process, and so it it will be challenged if it happens, and it shouldn’t even get to the point where it is challengeable. That’s first and foremost.
But, you know, ultimately, it does… pose the same sort of threat. And so, what I think needs to be clear to senators is not only do does the American public want them to vote no on this? They disagree with these bills in principle, but that any effort to try to ram this down the throats of American voters will be opposed, not only by good government groups, but hopefully by those voters who will be able to cast a ballot by issuing some consequences in the fall. That’s really what these representatives care about. And the backlash to any effort to suppress the vote on this scale will be tremendous.
Jen Rubin
And I think that’s, what we’ve seen, and perhaps what has been surprising to them. I must say, the SAVE Act is a bit of a constitutional, law school questionnaire, how many provisions of the Constitution might this, violate? The 19th, the 15th, the 14th, the Elections Clause, the 24th, the poll?
Janai Nelson: The poll tax. It’s very costly to get a replacement birth certificate or a passport.
Jen Rubin
Absolutely. So, as we just wrap up, I just want to get your thoughts. The First Amendment, of course, protects speech, press, but also the right of lawful assembly. On the 28th, people… on the Saturday, people are going to be going out in massive numbers. As a constitutional matter, and as a matter of democracy, how should people think of this opportunity? Should they be assured that they have a right to do this peacefully? And how important is it at this point in our democracy for people to show up and to show, what they believe in?
Janai Nelson
I think it’s incredibly important that we show up and show out if we, as almost everyone I run into, are concerned about the future of our democracy. What we’re seeing is an all-out assault on fundamental freedoms that we have all relied on and assumed were part of being an American in this country. And the right to protest is one of them. And when we don’t exercise our rights, when we don’t show how valuable they are, they are subject to attack. And so, I encourage everyone to find a way to support the No Kings. demonstration and rally, because it is one of the few ways that we have to peacefully register our dissent. We have the right to protest. We have a right to vote free from discrimination, and these are tools that we all possess in equal measure. We can all do something, and it doesn’t cost us anything to exercise those rights, but it will cost us our future if we don’t.
Jen Rubin
Thank you so much, Janai. It is always such a pleasure, to talk to you, and we will look forward to hearing back from you, hopefully when the SAVE Act meets its demise, and we have free and fair elections in November. So, thanks again, we really appreciate it.
Janai Nelson
Thank you, Jen. Always good to talk.
