Why are Line Warming Bans Problematic?
June 14, 2024
Across the country, nonprofit organizations do a lot of good work helping people to vote. This work has been targeted by Republican legislators and activists in a number of states by creating unnecessary rules governing voter registration drives, prohibiting third parties from assisting voters in receiving or submitting mail ballots, and criminalizing helping voters remain in long lines at the ballot box by providing them with food and water (line warming).
Line warming became another outrage issue for conservatives after the 2022 mid-term elections, when nonprofit organizations in Georgia offered assistance to voters who were waiting for hours in line to cast a vote. The Georgia legislature passed a sweeping voter suppression law afterwards that made it illegal to approach within 25 feet of any voter waiting in line regardless of how far they were from the ballot box. As far as I can tell, every state has a no-electioneering perimeter at polling stations. Typically, this is between 100 and 500 feet from the entrance of a building that houses a polling station. And the prohibition is usually on electioneering – which means campaigning or displaying campaign collateral. But Georgia’s is unique in not letting anyone approach a voter waiting in line no matter how far away from the polling place.
The Georgia law was ruled an unconstitutional violation of free expression by a federal district court, applying criteria established by the 11th Circuit in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale.1 However, citing the Purcell principle that courts should not change election rules too close to an election, the court denied an injunction. Another district court also ruled line warming to be expressive conduct and found a Florida ban unconstitutional,2 but the 11th Circuit reversed the decision on other grounds.3 Two weeks ago, as noted in this newsletter at that time, a New York federal district court found the Empire State’s line warming ban to be an unconstitutional violation of free expression, citing the criteria set out in Food Not Bombs. The state Senate has passed legislation essentially codifying this decision, but the Assembly has not acted yet. It is likely the legislature will ban line warming and moot any further appeal of the district court decision.
While Florida and Georgia likely would and have enforced their line warming bans, New York has not and the defendants (who are elections officials in New York City) claim they will not enforce it against anyone simply handing out food and water to voters. However, they claim they need the law to be on the books to curtail bad actors. The court was not persuaded by this. A simple change in personnel among election officials could open up a chapter of enforcement. The constitutional problem outweighed the potential bad actor problem.
One might wonder why make such a fuss over a law that is not enforced in an unconstitutional way in a state where it is unlikely to be abused by authorities. Yes, it is important to get the law right. If the law is unconstitutional, then it should be struck down so that no person is violating it by exercising their constitutional rights. If the law is just unwise, well, enforcement discretion is one thing, but the law should be repealed by the political authority - in this case the state legislature. But there is something more dangerous going in this country. It is the attacks on nonprofits by the right wing for technical violations of the law. The New York decision notes that the Board of Election has not received any complaints that would require an investigation into illegal line warming activities. From what we see around the country right now, the judge should have added “yet” because right wing activists are attacking the right to vote in all sorts of places that once seemed uncontroversial.
These kind of attacks are largely targeted at nonpartisan efforts, because 501c3s are already prohibited from doing partisan work. There are already a lot of ways in which 501c3 nonprofit organizations are curtailed in their efforts to help voters without state legislators criminalizing and prohibiting once-uncontroversial nonpartisan activity. Many of the organizations that do voter assistance work are small community-based organizations. These groups often rely on grants from foundations, which require them to be 501c3 for tax purposes (this allows contributions to be tax-deductible). Also, it is not permissible under IRS rules for a 501c3 organization to use its money to donate to non-501c3 groups unless the funding has come to the first group outside of the tax-deductible donation scheme (which is very unusual). The nonpartisan nature of the work requires vigilance and careful record-keeping and firewall building. These things can be too burdensome on many small groups and they, whether out of limited capacity or heightened self-protection, decide to stay out of the business of assisting voters.
Voter assistance and voter information are squarely in the realm of charitable activities for which tax exemption is granted by the IRS. Right wing activists cannot attack organizations directly for doing this work (as long as it is nonpartisan). So one way to mute their influence is to criminalize or otherwise prohibit the activity. Granted, the primary purpose in much of this legislation is voter suppression. But a secondary purpose is to thwart the ability of nonprofits to help voters get out and vote - which also acts as a voter suppression method. A number of organizations were created in the wage of Voter ID and related laws to help voters comply with the law. Some states are increasingly passing laws that curtail the landscape for which these nonprofits can legally make an impact.
Line warming bans are insidious kinds of voter suppression laws. They do not appear to be about suppressing the vote, but protecting voters from harassment and the public from vote-buying. What line warming bans actually do is require voters to patiently wait in long lines on hot and sunny days without being allowed someone to hand them bottled water. Right wing activists want people to give up and leave the line, and thus not vote. This is one reason why they hate mail voting so much; the process is very much in the control of the voter unlike going to the polls on election day. It’s been hard to turn back the clock on mail voting just like it has been with remote work. The pandemic allowed us to work differently and a lot of us liked it. So many Republican states have created rules that prevent nonprofits from helping voters with mail ballots as well.
One lesson of the New York line warming case is that it does matter if these laws are on the books. Just because current officials are not enforcing the law does not mean that future ones won’t. It does create a chilling effect. The plaintiffs in the New York case, the Brooklyn Branch of the NAACP, testified that they have long wanted to help voters remain in line to vote but have not done so because it was illegal. The mere existence of the New York law represented voter suppression.
If you want to track election-related legislation in the states, check out Voting Rights Lab’s Tracker.
If you want to track litigation against voter suppression laws, check out Democracy Docket.
If you want some guidance on voter assistance rules for nonprofits in your state, check out Democracy Capacity Project.
For more information on what nonprofits can do and not do related to political advocacy, check out Bolder Advocacy.
901 F.3d 1235 (11th Cir. 2018). “In Food Not Bombs, the Eleventh Circuit concluded that a nonprofit’s distribution of food in a public park was protected by the First Amendment because a reasonable person would understand the event to convey an anti-hunger message. Id. at 1238-42. In arriving at that conclusion, the court considered five factors: (i) the nonprofit set up tables and banners and distributed literature at its events; (ii) its food sharing events were open to everyone and all were invited to participate and share in the meal; (iii) the events were held in a traditional public forum; (iv) the subject of the intended message related to an “issue of concern in the community,” and (v) the means of conveying the message — sharing food — had a “significance” that “dates back millennia.” Id. at 1242-43.” Brooklyn Branch of NAACP v. Kosinski, 21 Civ. 7667 (KPF) at 29 (US District Court for the Southern District, May 30, 2024).
League of Women Voters of Fla., Inc. v. Lee, 595 F. Supp. 3d 1042, 1129-30 (N.D. Fla. 2022).
League of Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905 (11th Cir. 2023).