by Shara Safer*

The U.S. Con­sti­tu­tion pro­vides that indi­vid­ual states have the pow­er to deter­mine the “Times, Places, and Man­ner” of fed­er­al and local elec­tions.1 This gives state offi­cials a large amount of dis­cre­tion over how local vot­ing precincts are run and how indi­vid­u­als are required to behave while vot­ing or vol­un­teer­ing dur­ing an elec­tion. How­ev­er, this dis­cre­tion is not with­out lim­its. One area of par­tic­u­lar con­tro­ver­sy con­cerns a restric­tive new law in Geor­gia, passed as part of the Elec­tion Integri­ty Act of 2021, that pre­vents indi­vid­u­als who are not elec­tion work­ers from hand­ing out food or water to any vot­er stand­ing in line (“Sec­tion 414”).2 Although the Geor­gia state leg­is­la­ture claims that the law pro­tects elec­tion integri­ty, vot­ing rights advo­cates point out that the new law will sup­press minor­i­ty votes.

Despite the dis­cre­tion states have to reg­u­late elec­tions, these reg­u­la­tions must still adhere to the Constitution’s lim­i­ta­tions on gov­ern­ment action. In this case, whether or not the statute vio­lates the First Amend­ment depends on whether the area sur­round­ing a polling precinct – where vot­ers wait in line to vote – is a pub­lic forum. This Con­tri­bu­tion argues that the area is a pub­lic forum; there­fore, Sec­tion 414 vio­lates the First Amendment.

The First Amend­ment pro­tects speech, includ­ing “sym­bol­ic speech” that can go beyond mere words.3 How­ev­er, local gov­ern­ments can and, some­times must, “reg­u­late the time, place, and man­ner of . . . expres­sive activ­i­ty.”4 In order to deter­mine whether a cer­tain activ­i­ty is pro­tect­ed by the First Amend­ment, courts con­sid­er two fac­tors: (1) whether the con­duct is expres­sive, and (2) whether it occurred in a pub­lic forum.5 Courts apply a stan­dard of strict scruti­ny only to restric­tions of expres­sive speech in pub­lic forums.6 Con­duct is pro­tect­ed as expres­sive speech if it is “inher­ent­ly expres­sive,” mean­ing the expres­sion con­veyed by the con­duct must be under­stand­able to an out­side observ­er by sim­ply observ­ing the con­duct in ques­tion, unac­com­pa­nied by oth­er speech.7 For exam­ple, burn­ing a draft card inher­ent­ly express­es hos­til­i­ty towards the draft to an observ­er,8 where­as mere­ly notic­ing a mil­i­tary recruiter out­side of a law school cam­pus does not con­vey the fact that the law school exclud­ed mil­i­tary recruiters from cam­pus as a mat­ter of prin­ci­ple.9

Many orga­ni­za­tions that hand out food at the polls pair their direct action with mes­sag­ing about the impor­tance of food secu­ri­ty. For exam­ple, World Cen­tral Kitchen, an activist group with the slo­gan “Food is a Uni­ver­sal Human Right,” orga­nized the “Chefs for the Polls” ini­tia­tive across the Unit­ed States to pro­vide an esti­mat­ed 500,000 meals across 735 polling loca­tions.10 They dis­played ban­ners with the words “World Cen­tral Kitchen” and “Food is Hope[,] Food is Com­mu­ni­ty.”11 These sorts of signs and mes­sages are like­ly to qual­i­fy as “inher­ent­ly expres­sive” under the Supreme Court’s prece­dent.12 Sec­tion 414 would nec­es­sar­i­ly affect a num­ber of orga­ni­za­tions like World Cen­tral Kitchen, which use signs, shirts, and their web­site to express a dis­tinct polit­i­cal message.

Because Sec­tion 414 pro­hibits expres­sive activ­i­ty, the ques­tion of whether courts will apply strict scruti­ny rests on whether the area sur­round­ing an elec­tion precinct is a pub­lic forum on elec­tion day. Pub­lic forums are areas that “tra­di­tion­al­ly have been held open to the pub­lic for expres­sive activ­i­ties,” like parks, side­walks, and streets.13 Non­pub­lic forums, con­trary to what the name would sug­gest, can still be open to the pub­lic, but are des­ig­nat­ed as a “spe­cial enclave, sub­ject to greater restric­tion.”14 Although the Supreme Court has held that the inte­ri­or of polling loca­tions are non­pub­lic forums on elec­tion day,15 it has been divid­ed about the sta­tus of the area sur­round­ing a polling place on elec­tion day.

Of course, if a court found the area where vot­ers are wait­ing in line to be a non­pub­lic forum, then the ratio­nal basis test would apply, which is a much eas­i­er hur­dle to clear. The most recent Supreme Court prece­dent that direct­ly address­es this issue is Bur­son v. Free­man.16 Although there was no major­i­ty deci­sion in this case, a major­i­ty of the jus­tices nev­er­the­less agreed that the area sur­round­ing a polling precinct is a pub­lic forum. Jus­tice Scalia was the only jus­tice who argued that the area sur­round­ing a polling precinct is a non­pub­lic forum, how­ev­er he was also the only jus­tice who pro­vid­ed an in-depth analy­sis of the pub­lic forum ques­tion.17 The oth­er jus­tices took it for grant­ed that the area around a polling place is a pub­lic forum.18 This is not a pri­ma­ry hold­ing of Bur­son, and Chief Jus­tice Roberts treat­ed the ques­tion as unset­tled in his lat­er deci­sion in Manksy, imply­ing that the issue is unre­solved for the pur­pos­es of today’s Court.19

If the wait­ing area for vot­ers is a non­pub­lic forum, the Geor­gia law would be upheld “as long as the reg­u­la­tion on speech is rea­son­able and not an effort to sup­press expres­sion mere­ly because pub­lic offi­cials oppose the speaker’s view.”20 This is a much low­er stan­dard than strict scruti­ny, and one Sec­tion 414 would eas­i­ly meet. As dis­cussed below, the reg­u­la­tion is ratio­nal­ly relat­ed to the com­pelling gov­ern­ment inter­est of pro­tect­ing the integri­ty of elec­tions.21 It also does not, at least on its face, restrict expres­sion based on ani­mos­i­ty towards a spe­cif­ic view­point and there­fore it sat­is­fies the Court’s gen­er­ous stan­dards for pur­port­ed neu­tral­i­ty.22 The Court has held that “a facial­ly neu­tral law does not become con­tent based sim­ply because it may dis­pro­por­tion­ate­ly affect speech on cer­tain top­ics. On the con­trary, ‘[a] reg­u­la­tion that serves pur­pos­es unre­lat­ed to the con­tent of expres­sion is deemed neu­tral, even if it has an inci­den­tal effect on some speak­ers or mes­sages but not oth­ers.’”23

Alter­na­tive­ly, if a court were to hold that the area sur­round­ing a polling loca­tion is a pub­lic forum, Sec­tion 414 would then be sub­ject to strict scruti­ny, mean­ing that it must be nar­row­ly tai­lored to address a com­pelling state inter­est.24 This is the most like­ly out­come since a non­pub­lic forum must be marked off as a “spe­cial enclave,”25 and Sec­tion 414 does not iden­ti­fy a dis­crete area, much less a specif­i­cal­ly demar­cat­ed enclave. Although the 100-foot buffer zone around polling precincts at issue in Bur­son was arguably an enclave, that area was eas­i­ly dis­cernible for any passer­by who want­ed to deter­mine whether they were stand­ing in a pub­lic forum. The same is not true of the vicin­i­ty of a line of vot­ers.26 The line of peo­ple wait­ing to vote is like­ly to move through­out the day as peo­ple arrive and move through the line. Even if there are some mark­ers show­ing where the line is or should be, the mark­ers are not near­ly as dis­tinct as a build­ing that serves as a polling loca­tion. There is no last­ing phys­i­cal bound­ary mark­ing the area around peo­ple wait­ing in line to vote, mean­ing that there is no way to define the enclave that is required for a non­pub­lic forum. All pri­or cri­te­ria used to des­ig­nate forum sta­tus of a place relate to the char­ac­ter­is­tics of the place in ques­tion, not the char­ac­ter­is­tics of the indi­vid­u­als who hap­pen to be there at a par­tic­u­lar time.27

In order for a restric­tion on expres­sive speech to pass strict scruti­ny it must be con­tent neu­tral and min­i­mal­ly restric­tive.28 As dis­cussed above, a law can be con­tent neu­tral even if it dis­pro­por­tion­ate­ly impacts spe­cif­ic groups.29 There­fore, the fact that Sec­tion 414 will impact vot­ing rights groups does not mean that it is not con­tent neu­tral, so long as it does not specif­i­cal­ly out­law a spe­cif­ic type of speech.30

Sec­tion 414 cer­tain­ly address­es a com­pelling state inter­est. Both state and fed­er­al laws impose strict penal­ties for bribery relat­ing to elec­tions, but have his­tor­i­cal­ly dis­tin­guished between com­pen­sato­ry activ­i­ty designed to pro­mote a par­tic­u­lar can­di­date, and activ­i­ties by vot­ing rights groups, which include free rides to polling loca­tions and refresh­ments while stand­ing in line.31 While these activ­i­ties may be espe­cial­ly valu­able to impov­er­ished vot­ers, the legal sys­tem has his­tor­i­cal­ly dis­tin­guished between these sorts of ser­vices and bribery.32 Pro­po­nents of Sec­tion 414 have argued that regard­less of these his­tor­i­cal dis­tinc­tions, the prac­tice of hand­ing out food is like­ly to ben­e­fit dis­ad­van­taged vot­ers, who are more like­ly to need food, and there­fore may be sus­cep­ti­ble to pres­sure to change their vote when giv­en food.33 Addi­tion­al­ly, the Supreme Court has repeat­ed­ly rec­og­nized that pro­tect­ing elec­tion integri­ty is a com­pelling state inter­est.34 Sec­tion 414 there­fore like­ly sat­is­fies the first prong of the strict scruti­ny test.

How­ev­er, the next com­po­nent of the strict scruti­ny inquiry, whether the law is nar­row­ly tai­lored,35 is not sat­is­fied by Sec­tion 414. The pro­hi­bi­tion on “the giv­ing of any mon­ey or gifts, includ­ing . . . food or drink” “with­in 25 feet of any vot­er stand­ing in line to vote at any polling place” does not pro­hib­it all com­mu­ni­ca­tion with indi­vid­u­als at the polls.36 That means that there are oppor­tu­ni­ties to inter­fere with vot­ers even if food is not direct­ly exchanged while the vot­ers are phys­i­cal­ly in line. Sec­tion 414 also pro­hibits any­one who is not an elec­tion offi­cial from “establish[ing] or set[ting] up any tables or booths on any day in which bal­lots are being cast.”37 This restric­tion is sim­i­lar­ly too broad to be nar­row­ly tai­lored because it restricts any kind of tables or booths, even those that are com­plete­ly unre­lat­ed to vot­er inter­fer­ence. Even a restric­tion on hand­ing out food, with­out the oth­er restric­tions on tables, would be too broad to sur­vive strict scruti­ny analy­sis. That restric­tion pre­vents vot­ing rights groups from help­ing vot­ers stay hydrat­ed and fed, which is a large bur­den on those groups, with only the de min­imis ben­e­fit of pre­vent­ing a the­o­ret­i­cal kind of vot­er inter­fer­ence. Fur­ther­more, bribery of vot­ers is already pro­hib­it­ed under both Geor­gia and Fed­er­al law, so this pro­hi­bi­tion on hand­ing out food is redun­dant in its pur­port­ed pur­pose.38 While it is true that a law can restrict behav­iors beyond just a spe­cif­ic harm­ful act, espe­cial­ly if the harm­ful act is easy to con­ceal,39 Geor­gia has not been able to cite a sin­gle instance of bribery relat­ed to hand­ing out food to vot­ers in line, so there is no evi­dence that a pro­hi­bi­tion on hand­ing out food is nar­row­ly tai­lored to a con­cern of vot­er interference.

Sec­tion 414 is sub­stan­tial­ly more restric­tive than the restric­tions on cam­paign activ­i­ty that have been upheld in the past.40 Rather than pro­tect vot­ers from undue influ­ence, Sec­tion 414 will bur­den impov­er­ished vot­ers and vot­ers of col­or, who are more like­ly to be forced to stand in line for hours at over­crowd­ed precincts in order to exer­cise their right to vote.41 Any review­ing court should there­fore strike down Sec­tion 414 as an uncon­sti­tu­tion­al restric­tion on expres­sion in a pub­lic forum.


* Shara Safer is a J.D. Can­di­date (2023) at the New York Uni­ver­si­ty School of Law. This Con­tri­bu­tion is a com­men­tary on the prob­lem at the 2022 William B. Bryant Luke C. Moore Invi­ta­tion­al Moot Court Com­pe­ti­tion host­ed by the Howard Uni­ver­si­ty School of Law. The ques­tion pre­sent­ed was the con­sti­tu­tion­al­i­ty of a fic­tion­al­ized ver­sion of the Geor­gia law dis­cussed in this Con­tri­bu­tion. The views reflect­ed here­in are not nec­es­sar­i­ly the views of the author.

1. U.S. Con­st. art. I, § 4.

2. Ga. Code Ann. § 21–2‑414(a) (West 2021); see also Ari­ane Datil & Mauri­cio Cham­ber­lin, Yes, it’s Ille­gal to Give Water, Food to Geor­gia Vot­ers in Line for Polls, Fox 61 (Apr. 1, 2021), https://www.fox61.com/article/news/verify/yes-its-illegal-to-give-water-food-to-georgia-voters-in-line-for-polls/507–88b0a0d2-0230–429e-becc-30d37565bcc9.

3. Rums­feld v. F. for Acad. & Insti­tu­tion­al Rts., Inc., 547 U.S. 47, 65 (2006) (quot­ing Unit­ed States v. O’Brien, 391 U.S. 367, 376 (1968)).

4. Bur­son v. Free­man, 504 U.S. 191, 197 (1992).

5. Unit­ed States v. Grace, 461 U.S. 171, 177 (1983).

6. Id. (“In [pub­lic forums], the government’s abil­i­ty to per­mis­si­bly restrict expres­sive con­duct is very limited . . . .”).

7. Rums­feld, 547 U.S. at 66.

8. O’Brien, 391 U.S. at 382.

9. Rums­feld, 547 U.S. at 66.

10. Chefs For The Polls Serves 500,000 Meals, World Cen­tral Kitchen (Nov. 4, 2020), https://wck.org/news/chefsforthepolls.

11. Id.

12. See, e.g., Hur­ley v. Irish-Amer­i­can Gay, Les­bian & Bisex­u­al Grp. of Bos., 515 U.S. 557, 570 (1995) (hold­ing that a ban­ner iden­ti­fy­ing a par­tic­u­lar group con­sti­tutes expres­sive conduct).

13. Grace, 461 U.S. at 179.

14. Int’l Soc’y for Krish­na Con­scious­ness, Inc. v. Lee, 505 U.S. 672, 680 (1992).

15. Minn. Vot­ers All. v. Man­sky, 138 S. Ct. 1876, 1886 (2018).

16. 504 U.S. 191 (1992).

17. Id. at 214–16 (Scalia, J., concurring).

18. See, e.g., id. at 196–97 (list­ing the char­ac­ter­is­tics of a pub­lic forum and assert­ing that the restric­tion at issue affect­ed speech in a pub­lic forum). Despite find­ing the area to be a pub­lic forum, the Court allowed a restric­tion on cam­paign­ing in that area to stand because the law was nar­row­ly tai­lored, and thus passed strict scruti­ny. Id. at 207.

19. 138 S. Ct. at 1886 (not­ing that “while the four-Jus­tice plu­ral­i­ty in Bur­son and Jus­tice Scalia’s con­cur­rence in the judg­ment part­ed ways over whether the pub­lic side­walks and streets sur­round­ing a polling place qual­i­fy as a non­pub­lic forum, nei­ther opin­ion sug­gest­ed that the inte­ri­or of the build­ing was any­thing but” with­out men­tion­ing the dis­sent­ing Jus­tices’ posi­tion on the matter).

20. Per­ry Educ. Ass’n v. Per­ry Loc. Edu­ca­tors’ Ass’n, 460 U.S. 37, 46 (1983).

21. See infra note 34 and accom­pa­ny­ing text.

22. McCullen v. Coak­ley, 573 U.S. 464, 479 (2014) (An unlaw­ful­ly con­tent-based restric­tion would require “enforce­ment author­i­ties to exam­ine the con­tent of the mes­sage that is con­veyed to deter­mine whether a vio­la­tion has occurred.” (cita­tions omitted)).

23. Id. at 480 (quot­ing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Demon­strat­ing the broad nature of this inter­pre­ta­tion, the Court in McCullen found that bar­ring pro­test­ers from the vicin­i­ty of abor­tion clin­ics was not indica­tive of ani­mos­i­ty towards a spe­cif­ic viewpoint.

24. Bur­son, 504 U.S. at 198.

25. Lee, 505 U.S. at 680.

26. See Ga. Code Ann. § 21–2‑414 (West 2021) (restrict­ing cer­tain activ­i­ties “(3) With­in 25 feet of any vot­er stand­ing in line to vote at any polling place”).

27. See, e.g., Grace, 461 U.S. at 178–79 (describ­ing the phys­i­cal char­ac­ter­is­tics of the forums in ques­tion to deter­mine whether they con­sti­tute a “spe­cial type of enclave”); Lee, 505 U.S. at 680–81 (rely­ing on the pur­pose of an air­port ter­mi­nal, rather than the char­ac­ter­is­tics of par­tic­u­lar trav­el­ers, as a rea­son that it would be a non­pub­lic forum); Bur­son, 504 U.S. at 196–97 (not men­tion­ing the pres­ence of vot­ers as part of the analy­sis for why the area around a polling precinct may or may not be a pub­lic forum).

28. See McCullen, 573 U.S. at 477 (explain­ing that restric­tions must be “jus­ti­fied with­out ref­er­ence to the con­tent of the reg­u­lat­ed speech . . . and that they [must] leave open ample alter­na­tive chan­nels for com­mu­ni­ca­tion of the infor­ma­tion” (cita­tion omitted)).

29. See supra notes 22 & 23 and accom­pa­ny­ing text.

30. See id. at 480 (hold­ing that restrict­ing protests in a buffer zone around an abor­tion clin­ic is a con­tent-neu­tral restric­tion even though it has the effect of chill­ing abor­tion relat­ed speech in particular).

31. Fed­er­al Pros­e­cu­tion of Elec­tion Offens­es 26 (Richard C. Pil­ger, U.S. Dep’t of Just. Elec­tion Crimes Branch ed., 8th ed. 2017), https://www.justice.gov/criminal/file/1029066/download.

32. See, e.g., Unit­ed States v. Lewin, 467 F.2d 1132, 1136 (7th Cir. 1972) (describ­ing leg­isla­tive debate indi­cat­ing leg­is­la­tors con­sid­ered free rides to the polls to be laud­able and not bribery).

33. Brooke Con­rad, No ‘pol­i­tick­ing’: Raf­fensperg­er defends Georgia’s food, water restric­tions at the polls, KATV (Apr. 2, 2021), https://katv.com/news/nation-world/no-politicking-raffensperger-defends-georgias-food-water-restrictions-at-the-polls.

34. Bur­son, 504 U.S. at 199 (“Ten­nessee argues that its restric­tion pro­tects the right to vote in an elec­tion con­duct­ed with integri­ty and reli­a­bil­i­ty. The inter­ests advanced by Ten­nessee are obvi­ous­ly com­pelling ones.”); Man­sky, 138 S. Ct. at 1888 (“The State may rea­son­ably take steps to ensure that par­ti­san dis­cord not fol­low the vot­er up to the vot­ing booth, and dis­tract from a sense of shared civic oblig­a­tion at the moment it counts the most.”); Eu v. S.F. Cty. Demo­c­ra­t­ic Cent. Comm., 489 U.S. 214, 231 (1989) (“A State indis­putably has a com­pelling inter­est in pre­serv­ing the integri­ty of its elec­tion process.”).

35. Id. at 208.

36. Ga. Code Ann. § 21–2‑414(a) (West 2021).

37. Id.

38. § 21–2‑602 (“It shall be ille­gal to receive, accept, offer, or pro­vide com­pen­sa­tion for solic­it­ing per­sons to reg­is­ter to vote based upon the num­ber of per­sons reg­is­tered and any per­son who know­ing­ly receives, accepts, offers, or pro­vides such com­pen­sa­tion on such basis shall be guilty of a mis­de­meanor.”); 18 U.S.C. § 597 (crim­i­nal­iz­ing “mak[ing] or offer[ing] to make an expen­di­ture to any per­son, either to vote or with­hold his vote, or to vote for or against any candidate”).

39. See Bur­son, 504 U.S. at 206–07 (not­ing that “statutes that make it a mis­de­meanor to inter­fere with an elec­tion or to use vio­lence or intim­i­da­tion to pre­vent vot­ing . . . fall short of serv­ing a State’s com­pelling inter­ests” because they only impede the “most bla­tant and spe­cif­ic attempts to impede elec­tions” (cita­tions omitted)).

40. Id. at 197.

41. Tim Car­man, New lim­its on food and water at Georgia’s polls could hin­der Black and low-income vot­ers, advo­cates say, Wash. Post (Apr. 9, 2021), https://www.washingtonpost.com/food/2021/04/09/georgia-voting-laws-food/.