A Deep Dive Into Line-Warming Bans as Federal Court Overturns New York’s Law

The deadline has passed for New York election officials to appeal a federal court ruling striking down the state’s line-warming ban, which prevented volunteers from giving food and water to voters in line at polling places.

In 2021, the Brooklyn Branch of the NAACP sued state election officials, challenging New York’s line-warming ban, claiming that it violated the First and 14th Amendments of the U.S. Constitution.

On May 30, the court sided with the NAACP, ruling that the law was unconstitutional. In its decision, the court ruled that handing out food and water to voters in line is protected free speech under the First Amendment because a volunteer “intends to communicate a message through line warming — that voting is important.”

Also, the court stated the law is too vague and overbroad. It’s not specific enough about the geographic zone it applies to and bans both nonpartisan and partisan line warming, which violates the First and 14th Amendments.“It is not clear that ‘offering a voter a bottle of water and a granola bar, with no mention of any candidate or issue on the ballot, could impair a citizen’s ability to vote freely for the candidates of their choice, or that such conduct would be taken as expressing a preference for any candidate, party, or issue,’” the judge wrote.

Original post, May 30

A federal court just overturned New York’s line-warming ban, so now people will be able to hand out food and water to voters in line at polling places, and New York is not the only state that has been battling it out in the courts over this issue.

While bans on handing out food and drinks to voters in line are not new, the term “line-warming ban” has popped up in recent years. This term was widely used after the 2020 election and discussions primarily centered around Georgia, especially Atlanta, which had high voter turnout and long lines at the polls.

Wanda Mosley, the deputy policy director for Black Voters Matter, cited a specific example of this, explaining that during early voting in Gwinnett County, Georgia in the 2016 election, there was only one polling place. She said there were so many people that it looked like “the line for a roller coaster at Six Flags.”

“There’s a lot of people in line on asphalt during a time in October where there were unseasonably high temperatures, and you had people who were literally fainting in line waiting to vote,” Mosley said in a phone interview.

Like New York, Georgia and Florida have both faced lawsuits fighting against their line-warming bans. Arkansas and Montana have line-warming bans as well but have not faced litigation.

A New York court blocked the state’s line warming ban.

The New York law, which has just been blocked by the court, states that foods and drinks can only be given to voters in line if they “have a retail value under $1” and are provided by people or entities who identify themselves.

In 2021, the Brooklyn Branch of the NAACP filed a lawsuit against New York election officials challenging the state’s line-warming ban, claiming that the law violates the First and 14th Amendments of the U.S. Constitution. 

The Brooklyn chapter argues that the law criminalizes protected free speech, burdening the NAACP’s right to participate in the political process and that it is unconstitutionally overbroad and vague.

“As another presidential election looms, where we could again see long lines at the polls, we are eager for the court to rule in our favor and give us another tool to support Brooklynites showing up at the polls to make their voice heard,” L. Joy Williams, president of the Brooklyn Branch of the NAACP, said in an email to Democracy Docket last month.

In a motion to dismiss the case prior to the trial, the state defended the law, stating that it “furthers the State’s compelling interest in maintaining the integrity of elections and protecting the right of individuals to vote freely.”

In its decision today, the court ruled that handing out food and water to voters in line is protected free speech under the First Amendment because a volunteer “intends to communicate a message through line warming — that voting is important.”

Also, the federal district court judge wrote that because it “is not narrowly tailored to promote New York’s interest in preventing voter harassment and intimidation,” the line-warming ban restricts First Amendment rights.

The law violates the First and 14th Amendments because it is too vague and overbroad, not being specific enough about the geographic zone it applies to and banning both nonpartisan and partisan line warming, the court stated.

“It is not clear that ‘offering a voter a bottle of water and a granola bar, with no mention of any candidate or issue on the ballot, could impair a citizen’s ability to vote freely for the candidates of their choice, or that such conduct would be taken as expressing a preference for any candidate, party, or issue,’” the judge wrote in the decision.

State Sen. Zellnor Myrie (D) introduced a bill to reverse the ban, which specifically seeks to get rid of the provisions that food and drinks provided have to be under $1. The bill, Senate Bill 616, passed the Senate but is currently stalled in the Assembly.

“Voting is an act of civic responsibility, not an endurance contest,” Myrie said in an email to Democracy Docket last month. “When voters face lengthy waits at the polls, there’s no justifiable reason to keep them from accessing food and water to make that wait a bit more comfortable.” 

He referenced the season 12 premiere episode of Curb Your Enthusiasm that “drew attention to these draconian bans on refreshments,” and added that passing this legislation “would be pretty, pretty, pretty good for our democracy.”

A federal judge temporarily banned Georgia’s line-warming ban in 2023.

Gov. Brian Kemp (R) signed Senate Bill 202 on March 25, 2021, which has numerous provisions, including a line-warming ban that prohibits anyone from giving out food or drinks to voters within a buffer zone 150 feet of a polling place or within a supplemental zone of 25 feet of any voter standing in line.

In August 2022, a judge denied a request to temporarily block the line-warming ban despite him saying that the part about the supplemental zone being unconstitutional. He cited the Purcell principle, which expresses that courts should not alter election or voting rules too close to an election to avoid confusion for voters and election officials.

Then, in August 2023, a federal district court judge temporarily banned the line-warming provision, handing out these goods can still only take place more than 150 feet away from a building with a polling place, outside of the buffer zone.

The judge said that people can hand out food or drinks within 25 feet of a voter because the provision likely violates the First Amendment. 

A month later, Republican intervenors and state officials appealed the decision to the 11th U.S. Circuit Court of Appeals. 

The state continues to defend the law, arguing that when third-party organizations approach voters waiting in line, they may feel pressure or harassment, and if they see organizations handing out things to people in line, like food and water, they always assume there are partisan motivations behind the actions.

Lauren Groh-Wargo, CEO of Fair Fight, a voting rights organization based in Georgia, told Democracy Docket that for her organization and many others, distributing food and water is not transactional at all.

“Anybody gets food or water. It just gets handed out no matter what. You’re not asking how people are voting before you do it,” Groh-Wargo said in a phone interview. “Republicans make that argument because they know full well that’s not what has been going on.”

The 11th Circuit upheld most of Florida’s line-warming ban in 2023.

In 2021, the League of Women Voters of Florida, Black Voters Matters Fund, Florida Alliance for Retired Americans and individual voters filed a lawsuit against all 67 Florida counties, arguing that provisions in voter suppression law Senate Bill 90 violate the First and 14th Amendments of the U.S. Constitution.

The Republican National Committee (RNC) and National Republican Senatorial Committee (NRSC) intervened in the case, joining the defendants.

The League of Women Voters argued in its complaint that the line-warming ban “advances no plausible election administration goal, exacerbates the burden of waiting in long lines, and disproportionately impacts minority voters.”

This law includes a line-warming ban that prevents non-election workers from giving out food and water to voters.

A trial began on Jan. 31, 2022, and a district court judge struck down numerous provisions in the law, including the line-warming ban, and the defendants appealed the decision to the 11th  Circuit.

The higher court paused the district court’s decision while the appeal was litigated, so the previously blocked provisions were in effect during the 2022 midterm elections.

On April 27, 2023, the 11th Circuit ruled that S.B. 90’s line-warming ban, along with other provisions, does not violate the 14th and 15th Amendments nor the Voting Rights Act. The court held that the only part of the provision that’s unconstitutionally vague is the portion that bans activity with the “effect of influencing a voter.”

Siding with the primarily Republican defendants, the Court said in its opinion that there is not enough evidence that a “bottle of water will convince [voters] to stay in line,” and that “the finding that the solicitation provision will have a disparate impact on black voters was clear error.”

Mosley said that all of these line warming bans have something in common: the intent behind them.

“This is intentional. This is not an accident. This is not a coincidence. This is all with intent to keep certain people home,” Mosley said in a phone interview.