Election laws are vital to securing voting rights. They give lawyers an outsized role in defending our democracy, whether in the courtroom or at a poll site.

In states from Florida to Arizona and right here in New York, the right to vote is facing new challenges and some lawyers are using the tools at their disposal to defend those rights.

My first guest on the most recent episode of WNYC’s “The People’s Guide to Power” is on the front lines of that fight.

Janai Nelson is president and director counsel of the Legal Defense Fund. The LDF is a civil and human rights law firm founded in 1940 by Thurgood Marshall, who went on of course to become the nation's first African American Supreme Court Justice. The LDF fights for racial justice using the power of the law.

Here’s our conversation, which has been edited for clarity and readability.

Brigid Bergin: Janai, there is so much for us to talk about today, but let's ease ourselves into it. I saw a tweet of your early voting sticker yesterday. What was your experience like?

Janai Nelson : It was wonderful. It affirmed everything about what we are fighting for in this democracy, and that is to make civic participation welcoming, enjoyable, and celebratory. I was able to cast a ballot very easily. There were lovely election workers welcoming me along the way and thanking me for participating and guiding me through every step of the process.

And it felt good. We were smiling at one another on the way in and on the way out and greeting other voters. It was a great experience.

That is the way voting, I think, should sound. That's the experience, hopefully, more people in New York are having. Your early vote was, of course, made possible because of changes in New York law just a few years ago. We have nine days of early voting here. In other parts of the country, though, states have changed their laws to restrict access to voting. What are some of the specific threats to voting rights that LDF is monitoring in this election, and where do you feel like those risks are most acute?

There are so many, it's hard to know where to start. So you mentioned early voting. We have seen rollbacks in the length of time that people have to vote before Election Day, and that is critical because allowing people opportunities to vote in advance of Election Day cuts down on long lines on Election Day. It makes the process easier on both voters and election workers. It is such an important element to an election process that has now become so fraught and complicated. So when we see early voting being truncated, it is a cause for great concern, especially because Black and Latino voters wait on lines at a disproportionately longer rate than other voters.

But we're also seeing a lot of voter intimidation and some very egregious examples of it across the country. And also rollbacks on basic ways to keep voters in line when they are waiting in long lines. There's now a prohibition in some states on providing basic sustenance like food and water to voters who may be standing in line trying to cast their ballot.

When you talk about something like voter intimidation, and I referenced what we saw certainly in Florida in some of those voter fraud arrests in August, what other kinds of acts of voter intimidation are on your radar at this point?

Well, I'm glad you flagged the Florida situation as an example of voter intimidation because what's happening there is having a significant chilling effect. When you see your fellow citizens being arrested and fined and put in jail because they mistakenly voted and they had a felony conviction on their records, It is very chilling. Who wants to take that risk?

We have encouraged voters to get informed and they can reach out to organizations like ours to check their voting status. But it is deeply disconcerting when you show up or you register to vote and you wind up being engaged in law enforcement as a result.

The other significant concern that we have is private citizens showing up at polling sites or showing up around drop boxes armed or in other threatening ways that also deter people from turning out and voting. We have a situation in Arizona where there are people who are masked and armed with full body armor standing around drop boxes. They have been stalking voters, taking photographs of them and their vehicles and license plate numbers, and that is a form of very aggressive intimidation. There's no other way to characterize it. And unfortunately, there was a decision just on Friday by a federal judge who said that this type of antic can continue in Arizona.

[UPDATE: On Tuesday, the same federal judge issued a temporary restraining order setting stricter limits on the activities of poll watchers within a certain proximity to the drop boxes, including a ban on yelling at people and a prohibition against openly carrying firearms.]

Were you surprised by last week’s court decision and the judge invoking the First Amendment rights of the watchers as what was most important?

I was surprised and very disappointed by such an overbroad reading of the First Amendment. Of course we all have First Amendment rights to peacefully assemble and to protest, but what we have here when it comes to the right to vote is a deliberate attempt to intimidate and scare voters. It is one thing to stand by peacefully and watch people cast a ballot — even that can be threatening — but it's on a whole different order when you are armed, when you are masked and therefore cannot be identified, and when you have on full body armor. That suggests that there is some imminent threat of violence that you are preparing for, or perhaps that you intend to incite and so it is quite difficult for me to understand how this judge arrived at that conclusion under any interpretation of the First Amendment.

I should say that if I look at this judge and recognize that he was an appointee, a nominee I should say, of the former president, to the extent that he reflects his ideology the result is unsurprising, but it is no less lawful.

I want to talk about some of the spike in legal challenges we have seen to elections in voting rights, particularly since 2020. We even have a big case here in New York over absentee ballots. How concerned should we be about voting rights here in New York as compared to places like Florida or Texas, where we've seen Republican lawmakers take really clear steps to restrict voting rights there?

I think we should be extremely concerned in New York. We should not take any part of our voting rights for granted. And the fact that absentee balloting is being challenged in New York is clearly a political calculation. Absentee ballots enable people who are unable to make it to the polls or who are traveling or have some other obstacle to casting a ballot in person to do so by absentee.

What we should be doing is expanding opportunities for people to lawfully vote, not decreasing them. The more people who turn out, the more voices we have in our electorate, the better our democracy is, the better it reflects the will of the majority, the better it is in responding to our needs and interests.

We often point the finger at the South or point the finger at certain hotspots in the country and think that we're immune, but we're not. We should be equally concerned in New York. Of course, we do see so many southern states and so many states in which there are a sizable number of racial minority voters being deliberately targeted for some of the most egregious voter suppression laws and tactics. So we are fully trained at the Legal Defense Fund to be on the ground on Election Day and leading up to Election Day to protect those voters because that is typically where we see some of the most egregious conduct.

Janai, a big factor, of course, in this year's midterm elections is redistricting. That's the process of redrawing our electoral maps based on the latest census. Earlier this month, the U.S. Supreme Court heard oral arguments in a major case out of Alabama that looked at racial gerrymandering, the LDF played a major role in that case, and you were there. Tell us a little bit about what's at stake in that case and what it could mean for the future of voting rights?

Yes, that case, Merrill v. Milligan is an extraordinarily important one for the future of political power in this country, and whether it will be equitably distributed. That case involves congressional districts in the state of Alabama. The state of Alabama is about 27% Black and there are seven congressional districts allocated to the state. Out of those seven congressional districts, there's only one in which the Black population that's 27% has an opportunity to elect a candidate of its choosing.

Our argument is that if we are looking at things fairly, there should be at least two districts that allow Black people in Alabama the opportunity to elect a candidate of their choice. And we made that argument to the Supreme Court under Section 2 of the Voting Rights Act, which was designed to protect voters who have been historically discriminated against and whose political power is often diluted by state actors who try to pack them in a district or spread them across many districts so that they can't have concentrated power sufficient to elect the candidates of their choosing. So that's essentially the arguments that we made in the court and I'm extremely proud that one of our lawyers, Deuel Ross, argued before the Supreme Court.

What we should be doing is expanding opportunities for people to lawfully vote, not decreasing them. The more people who turn out, the more voices we have in our electorate, the better our democracy is.
Janai Nelson, president and director counsel of the Legal Defense Fund

He's one of very few Black oralists to get a chance to present these arguments in the highest court of the land. But what this particular case means for the future of the Voting Rights Act, the future of congressional districts and other districting plans could not be overstated. It is essential that in states like Alabama and Louisiana and South Carolina and other places where we are litigating that the court interpret the Voting Rights Act in the way that it has for the past nearly five decades, and that is to ensure that political power is equitably distributed.

When we see an instance of voters being intentionally denied the ability to elect candidates of their choice, the Voting Rights Act should be able to rectify that change. As it is now in eight days, voters in Alabama will be turning out to the polls and they will be voting on a map that three federal judges have said is racially discriminatory.

And just the idea that this — the Supreme Court did not intervene earlier to prevent that from happening is extremely disturbing. They do have an opportunity to make sure that that map is not in place going forward and that other discriminatory maps do not continue to govern our elections. And I hope that the Supreme Court will do the right thing.

And that's a ruling we would likely hear some time in the spring, correct?

That's likely yes. Given the court's record, I don't expect that it will issue a decision soon. It usually takes its time with these types of complicated cases.

Let's go to Carol in Wilton, Connecticut. Carol, thanks so much for calling. Welcome to WNYC.

CALLER: Hi, thanks for having me. Here's my question for the legal expert here: from 1982 until 2018, the Republican National Committee was under a consent decree that prohibited it from engaging in activities that are basically just exactly the activities we're seeing now, right? So I'm sure she knows about it. And my question just is: does that long history count for nothing, or is there some avenue that provides us?

Carol, thank you so much for calling and raising that question. Janai, I hope we're not putting you on the spot. Do you have some insight into Carol's question for her?

No, absolutely. I've spoken about this quite a bit. And she's absolutely correct that there used to be a consent decree in place that began in 1982 as a result of some very significant voter intimidation tactics that were targeted on Black and Latino communities in New Jersey. This was a out of a gubernatorial race in New Jersey where the Republican Party had very specific designs on depressing turnout and intimidating voters, and as a result, they were under a consent decree, a court-ordered agreement, that allowed for there to be monitoring of some of the tactics that are used on Election Day to monitor polls and et cetera to make sure that there wasn't additional, ongoing voter intimidation. Unfortunately, that consent decree was dissolved right before the presidential election, the last one that we had, and we saw as a result widespread intimidation across the country.

Now, I should be very clear that the Legal Defense Fund is a nonpartisan organization. However, when we see any party engaging in voter intimidation, we call it out. And we are very clear about that. There are other protections in place. There's still the Ku Klux Klan Act that specifically prohibits intimidation of voters. It was enacted in order to protect Black voters who were being targeted and harmed, subjected to violence and threats, because they were exercising the right to vote. And that is sadly a statute that we've had to invoke more and more in recent years, including in the last presidential election because of intimidation and harassment that we saw in states like Michigan. And in other places.

Janai, in our last minute — here practically speaking, what kind of guidance are you giving your team of attorneys as they prepare for Election Day and its aftermath? And similarly, I suspect, you're the type of person that your friends and family are always asking their questions about their voting rights. So if you had something to sort of leave us with as we head into this election, what kind of guidance do you have?

So my guidance is to have a voting plan, and one of your callers talked about turnout and you said, you know, bring a friend. All of those are excellent ideas. Have a voting plan. One, check your status before you go if you can. Have a plan to come with all the materials that you need. Fortunately, in New York you only need to verify your signature and then you can vote.

If you are in other places, you need to make sure that you have any documentation that may be required of you. Be prepared to wait in line. This is worth it. It's worth your while to stick it out and cast a ballot. If there is some trouble at the poll where your ability to vote is being questioned try and press to cast an actual ballot if you can. And in the event that you can't, you are entitled to a provisional ballot, so you'll at least be able to cast one that hopefully will be counted later once the kinks are ironed out, you should also get resourced with information if you are unclear about anything. And we have a wonderful site, voting.naacpldf.org. You can get lots of information about how to vote, what your state's voting laws are. And then if there's trouble on Election Day, we are standing by ready to assist. There is a hotline number that we, and a whole coalition of civil rights organizations staff on and leading up to Election Day, and that's 1-866-OUR VOTE [687-8683].

And that is a number you should put in your phone and have it on speed dial should you ever need it. I hope you don't, but you are protected at the polls and you have a right to vote. Embrace it and use it.