Marc Elias: Janai Nelson, welcome to Defending Democracy.
Janai Nelson: Hey Marc, how are you?
Marc Elias: Good. So there is a lot going on right now in court. There's a lot going on that's not in the courts, that are in the streets, all in service of the fight for democracy. So you sit in a very lofty perch. So hello up there as the head of not just a civil rights organization, but the leading voting and pro-democracy civil rights organization.
How do you make sense of the moment we are in?
Janai Nelson: It's hard to make sense of it. I think what is happening is absolutely senseless, but the way to make sense of it in terms of just understanding the historical underpinnings is to know that this country has battled over power, political power since its inception. And we are at another inflection point. And what the Legal Defense Fund has always been aware of is the fact that Black people have often been exploited in that battle for power and have been used as the vector for the undermining of democracy.
I think some of that is coming to light now in ways that we've been seeing and trying to shine a Black light on for decades, but it's becoming a bit more visible to others, but still not visible enough. And it's important that we see it in that full context.
Marc Elias: One of the reasons I wanted to have you on was because of the organization that you head and the historical perspective that you bring. I think that too often when people think of the struggle for voting rights, whether it's the 1965 Voting Rights Act, whether it was the Civil Rights Act before that, the way we learn it now, the way we learn it in the rear view mirror was, "Okay, there was this terrible time in America where there were not civil rights. And then Thurgood Marshall came along and Martin Luther King Jr. came along and then, in the course of a few decades, was a victory after a victory after a victory, and everything got much better."
And, of course, that isn't how it happened. Talk a little bit about in an era of TikTok and social media where everything wants to be neat and clean, talk a little bit about how both what the truth was and is, but also how do you bring that sense of fortitude, that sense of stick-with-it-ness that is necessary.
Janai Nelson: Yeah. That is such an important question. And it has been so dangerous for us to think of our story in such a linear way and to think that we had actually solved problems through these saviors that came along in the civil rights movement. And we got this incredible legislation like the Voting Rights Act of 1965, like the Civil Rights Act of 1964, the Fair Housing Act of 1968. That was, yes, a heady time that produced transformative legislation for this country. And I would say the Voting Rights Act was probably the most transformative of all.
But what people don't understand is that all of that came out of such tumult and turmoil and violence, human sacrifice, and that it was preceded by a period of extraordinary domestic terror visited upon Black citizens and others, primarily Black citizens to keep us away from the ballot box. And these fights began back when the 15th amendment was ratified in 1870, right? These are not new fights. Immediately after that ratification, there was an immediate backlash, which is why it took nearly a century for the right to vote without racial discrimination to become fully realized, at least on paper through another piece of legislation, the Voting Rights Act.
But even after that, there were still struggles to ensure that we all had full access to the polls. And the reason why it's important to understand that back and forth and the ugliness of it all is because it really never ended. Right after the Voting Rights Act was passed, it was immediately challenged, within months of its passage. And the Supreme Court had to say, "No, it is constitutional," just a year later in South Carolina v. Katzenbach. And it's been periodically challenged ever since. And it began to be constrained within about two decades of its passage. So it's not as if we've ever fully embraced the idea of becoming a full-blown multiracial democracy. There's been opposition from the beginning and ongoing. And if we appreciate that, then these fights are not as surprising. And the work that you do and the work that LDF does is understood as a necessary, unfortunate, but necessary part of protecting and advancing our democracy.
Marc Elias: One of the common refrains we hear right now is that the courts are not going to save us, and that the courts are not necessarily even on our side. On the other hand, you run an organization that relies to some extent on the courts. You need a functioning judiciary and you need there at some level, I think, there to be public confidence in a judiciary. On the other hand, there are decisions that come out of the courts that are hard for people like you and me to defend. How do you balance that?
Janai Nelson: The way I hold that tension — that tension of seeing the courts as a space of opportunity and promise and possibility, but also the reality that they have never been consistent, the courts have never been consistent in upholding and protecting civil rights and the values that we believe in at LDF — I know that in the same way that we litigate, we do policy work. We have organizers. We have researchers. We do public education. We use every tool in the toolbox.
And the courts are one tool. They are not the only tool. They are not often the most reliable tool. But they are a critical tool to advancing racial justice. And we know that there will be wins and there will be losses. We know that there will be moments when it's almost impossible to reconcile what the court is doing on the one hand in certain arenas and on the other hand in others.
But I also can point to many wins that we've secured, that you've secured, that we've secured together as co-counsel on cases. I'm just thinking about the fact that we were able to quash the executive order that attempted to require proof of citizenship and other onerous burdens for people to vote, that we were able to win Allen v. Milligan a couple of years ago that made it clear that Section 2 protects the use of race as needed to make sure that there's no racial discrimination in districting. But of course, we were back before the court, relitigating it again just this year.
So the court is a space of extraordinary contradiction. And that's something that we have lived with our entire 85-year existence using the courts to transform this country. But I would say that we cannot afford to abandon the courts, certainly not to our opponents and certainly not even to the judiciary itself because it is such a critical institution.
Marc Elias: I wanna take a step back and talk about one or two doctrinal things that are on my mind. The first is going all the way back to the Shelby County decision, which was the decision in 2013 that dismantled Section 5 of the Voting Rights Act.
The Supreme Court seemed to adopt a test that essentially, in judging Section 5, you have to make sure that you are treating states equally and that Congress is not being overly harsh, the congruent and proportional test. I was thinking, "The 15th Amendment doesn't say anything about any of that." The 15th Amendment just guarantees the right to vote and then gives Congress the authority to implement that. It doesn't say anything about "equal dignity to the states." In fact, I suspect if you asked the Congress that passed the 15th Amendment how much it was concerned about the dignity of the former Confederate states, they probably didn't care anything about the dignity of it.
Do you ever think like we're sort of starting from the wrong place? I listened to the Louisiana case and I was thinking like, Congress passed a law pursuant to a grant of authority they have. If Congress wants to change the law, Congress can change the law, but why are we talking about all the rest of this?
Janai Nelson: 100%. I can't tell you how frustrating it is, and you know this because we do the same thing, in litigating within the confines of laws and strictures that make no sense, that are inconsistent, and that actually are inherently contradictory with precedent. It is very difficult to have to play and color within those lines and yet point out the hypocrisy without fully alienating your audience.
Marc Elias: I was listening to some of the arguments and you and the others were saying like, "There still is racial discrimination and we still need this." I'm thinking like, "Why do we have to get into any of this? If Congress doesn't think there's racial discrimination, Congress can repeal the law, but Congress hasn't repealed the law. And so that's the end of the story." They passed the law pursuant to a constitutional grant of authority. Why is it on you?
Janai Nelson: Listen, you are preaching to the choir. I fully agree. These have been long-established principles, right? Congress has a wide berth to interpret and pass legislation pursuant to its enforcement powers under the Reconstruction Amendments. That has been affirmed under the Necessary and Proper Clause. That has been affirmed for centuries now at this point.
And there's no basis, even in the Shelby County case congruence and proportionality has never been applied to Section 2. So the idea that that is even a question on the table is an invention. And it's an invention that contradicts this court's precedent, which held, in City of Rome, another case not that long ago in 1980, the court was really clear about the fact that the Voting Rights Act is fully constitutional. It is not subject to congruence and proportionality. It is just a clear exercise of Congress's power under the reconstruction enforcement clauses, open and shut case in theory.
But we now have this allergic reaction to the concept of race as a remedy that is undermining our ability to address race when it discriminates. And that is really the failure of this country, of our court system for decades. That is our Achilles heel. And that has led us into this moment where we are on the precipice of absolute tyranny. And it's unfortunate that we have arrived here when we had all the tools along the way, all the right precedent to guide us in a better direction.
Marc Elias: Maybe it's because I just spent too much time hanging out with Federalist Society folks but the 13th, 14th, and 15th Amendment, you can't disconnect from race. Like literally they were enacted to do away with slavery. You can't read the 15th Amendment as being race neutral. It's not trying to be race neutral. And so I just don't understand a bunch of people who read the Second Amendment in this hyper-literal way when it comes to the 13th, 14th, 15th Amendment, they're like, "Yeah, no, we have evolved past that." So I find it frustrating.
The other doctrinal question I have to ask you though, which I firmly believe is the only right that is subject to a balancing test is the right to vote. Every other right, the state has to have really good reasons to infringe upon, but not the right to vote. And I cannot help but connect that to the fact that so many of the cases that led us down that path involved Black voting rights. I can't help but think we wouldn't have that test, but for the fact that in most of the cases that developed that test Black voting rights were at stake.
Janai Nelson: No, I don't think you're being too harsh at all. And I think it reveals something that many people don't fully appreciate about our Constitution — it is in and of itself a series of compromises and contradictions that are largely based on race. Just the entire way the Senate is constructed, the way the Constitution falls short of going as far as it could have. All of these were negotiated compromises in order to appease the states and yet try to advance political power and citizenship and the civil rights of Black people. But you can't compromise civil and human rights. You can't compromise fundamental rights that the Supreme Court itself said as far back as 1886, a right that is "preservative of all rights." There should be no compromise or negotiation there.
But somehow we've gotten into, as you said, a balancing test or unfortunately even under Brnovich, the case that Justice Alito wrote the majority opinion for just a few years ago, which now has narrowed Section 2, he already narrowed it when it comes to addressing voter suppression by making the test nearly impossible to meet. And that's what we fear may be the case right now when it comes to redistricting, which is why it's so important that we're having this conversation.
Marc Elias: Let's talk about the Supreme Court case. You argued the side of defending Section 2. It started with a lawsuit that you brought, my law firm brought, that gained voting rights under Section 2 for Black citizens of Louisiana. The fact that the Black population of Louisiana had to live under the indignity of having their federal voting rights violated before this case should be an absolute national scandal.
Then a group of white voters filed a lawsuit saying the white voters were being discriminated against, which is honestly just preposterous. And that case goes to the Supreme Court. They heard the case and then set up a re-argument on a broader question: the continued vitality of Section 2. And you stood up in the courtroom and I thought you were brilliant. You were brilliant on the law, but I thought you were particularly brilliant because you refused to back down from the fundamental principle of the righteousness and the constitutionality of the Voting Rights Act.
And that's a hard thing to do. You have to worry about winning the case in front of you while also maintaining the moral and legal fortitude of your position on the big question. How did you approach that?
Janai Nelson: Well, as I said earlier, you need to first understand the lines within which you are coloring based on what the court has said before. And then also where you have some leeway to speak to what I will just frame as the hypocrisy of what is underlying the argument. I think it's important to thread that needle, right? To make the case as the justices understand it but then also to explain that there is an alternative reality that is legitimate and that reality is the fact that no Black person has ever been elected in the state of Louisiana statewide even though this is a state that is 33% Black.
And while numbers alone do not necessarily dictate what political power should look like, when political power is so minimized that this one-third population has a say in only one out of six congressional districts, that's a clear indicator that something is wrong. We know that the Voting Rights Act, again, as part of a compromise says that there's no entitlement to proportional representation. So we're constantly living in a world where compromises have already been made for us and we have to make our case in light of those compromises, but also bring the very strongest facts before the justices that not only address that test, but also point out the ludicrousness of some of these principles.
Marc Elias: I listened intently to the argument and every time people raise "traditional redistricting criteria," I always start by chuckling inside because maybe part of the problem is the traditional redistricting criteria were to screw over Black voters in the South. When they added in partisanship as a traditional criteria, boy has that traveled a long road.
But I have a question for you about where we go from here. Fair Fight published a report that said that if you were to lose this case it could mean 19 districts. The New York Times published something that said 12. That would be an unbelievable setback for democracy in this country.
Janai Nelson: It would be extraordinary. It would take us back to a time of homogenous governance. That is a recipe for disaster that is unsustainable for a country. It's not the democracy that we said we wanted to be. Elections will become meaningless if the lines are so manipulated, that I don't think we can be taken seriously as a democracy. So I hope that there's an appreciation of what is at stake here. It's not just only about one group of voters. It is really the entire foundation of democracy that is at risk in this case.
The statistics you gave are alarming enough at the congressional level. What we're not talking about is what this means for state legislatures, for city councils and school boards. So it's going to require us to think much more radically and transformatively about our election process as a whole, which may be a good thing. It may lead us into proportional representation.
Marc Elias: When the John R. Lewis Voting Rights Advancement Act came up in Congress last, not a single House Republican voted for it. And here we are in 2025 and I think it is fair to say that the Voting Rights Act is no longer viewed as the crown jewel of American democracy, which is what Ronald Reagan called it. It's viewed in a different light. I'm curious, wearing your policy hat, what accounts for it and what do we do about it?
Janai Nelson: I think that it really isn't about policy, it's about politics. There have been four reauthorizations of the Voting Rights Act. They have been remarkably and increasingly bipartisan.
And this shift that we've seen has really come about once we saw this extremist conservative faction grow that has taken control of the Republican Party. We are a nonpartisan organization, so I do not do political analysis, but I can state fact. And the reality is you have decades of reauthorization of this act and yet, just as the political tides and winds began to change, all of a sudden people who were once part of the same party have now backed off it completely. And that is consistent with the willingness to compromise democratic principles for raw power.
So when you look at it in that broader context, it is not entirely surprising that people would trade what I call the very birth certificate of this multiracial democracy for whatever transaction they think they may be getting in the moment that gives them immediate and entrenched power. That's what the partisan gerrymandering is about. There is a bet being placed on the ability of a small faction of folks in this country to wrest democracy from the rest of us. And I say for those of us who are going to be most affected, it's time to just turn that table over.
Marc Elias: One of the things that always frustrates me is how hard it is to get people to understand the voting system that they don't experience. We have in this country a huge problem with people waiting in too long lines to vote. The problem is that the only communities affected by it are Black voters and in some places, young voters. Effectively, if you are not on a college campus and you are white, you are almost never going to be in a long line to vote. But if you are a Black American, you oftentimes find yourself in a long line to vote.
The truth is, we have a disparity in how long the wait times are within counties. How do we break through to people that we do not have a system of democracy that is treating all Americans the same?
Janai Nelson: Well, one, it begins with having media that is going to be truthful, having these alternative vehicles to surface some of these issues. I think having podcasts like this one helps to democratize some of that. But unfortunately, mainstream media does not cover these issues in the way that it should.
There are lots of efforts to try to get people to be in conversation with folks who don't agree with them. I think another part of that is getting people to experience what they may not experience. We hear these arguments all the time, even with respect to voter ID. "Everyone has a voter ID. Why can't you bring your passport or your driver's license?" And that's easy to say if you are in a community where most people have them and you can afford to replace yours when it gets lost. And the line at the Department of Motor Vehicles isn't that long and you don't have to worry about taking time off from work. All of those same obstacles apply equally to waiting in long lines at the polls.
And it does have a disproportionate impact on Black people. And the resource allocation is a reflection of that.
The only real solution is to force these types of conversations into the center and to force media to do a better job of covering these issues in an experiential way so that it's not just graphs but it's actually following people through the journey of what it means to vote as a Black person in this country. And it is not one that most people would sign up for.
Marc Elias: I say this in rooms of white folks all the time. "How long would you wait in line to vote? I bet you wouldn't wait an hour in line to vote.” So why do you think it's a celebration of democracy when it's a Black person waiting in line? But for you, it'd be a major inconvenience.
But let me turn to the last topic. You have witnessed the most shameful capitulation of the legal establishment in modern times. Watching the largest law firms of this country pledge pro bono hours to Donald Trump at the same time that they are cutting back on the work that they are doing for immigration causes, for civil rights causes, for fair housing causes, for voting rights causes is just an absolute shame. A: Has it affected your organization? B: What do you make of it? Is there anything we could do about it?
Janai Nelson: Yeah, there are things we can do. And let me just start with some of your early questions. I think it is an absolute shame. It is a stain on the profession that already suffers from questions about its morality and questions about its conviction to the greater good. We, the collective, we as lawyers have let the public down by not leveraging the power that we possess to abdicate that responsibility and bow and bend the knee to a wannabe king. It is so, so ignominious.
Why the law firms that were being pressured did not band together, did not figure out a way to negotiate a formidable counter-response to that pressure, is beyond me. We're talking about some of the strongest litigators and transactional lawyers who abandoned every instinct to sell themselves and their clients and their pro bono clients out.
That said, we must not focus only on the "kneeling nine" or so that did this. We also should be celebrating and lifting up the "fighting five." The law firms that looked this administration in the eye and did the staring contest and did not blink and have not suffered economically for it. In fact, at all.
Marc Elias: At all. Yeah, I talked to partners at a number of them and they're all having great years.
Janai Nelson: That's right. In fact, have been rewarded. And so when we get to the question of what we can do, we as individuals, where you're selecting lawyers, you can choose your law firms based on your beliefs. We as individual citizens and residents can also decide whether we are going to spend our dollars with companies that are represented by law firms that capitulated. So there's a lot of economic pressure and power that we possess and that must be utilized.
And yes, it has impacted the Legal Defense Fund. We do all of our own litigation, but we do work with other law firms and we co-counsel, and that has also been an extreme method of support and that has definitely been impacted by the positions that certain law firms have taken.
Watch the full interview here.
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