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.
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).
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/.