WATER & PIZZA: WHAT WOULD ALEXANDER HAMILTON THINK?

• Author: Wiik, Sarah

Introduction 933 I. Line-warming Activities 935 II. Recent Bans on Line-warming 937 A. Florida SB 90 940 B. Georgia SB 202 941 III. Fighting the Restrictions 941 A. Standing 942 B. First Amendment 943 1. Legal Background 943 2. Florida SB 90 945 3. Georgia SB 202 946 C. Voting Rights Act 946 1. Legal Background 947 2. Florida SB 90 948 3. Georgia SB 202 949 D. The Purcell Principle 950 IV. The Impact of these Restrictions 951 V. Conclusion 954 Appendix A: Study on Wait Times Following 2012 Elections 955 Appendix B: Review of Legal Challenges to SB 90 & SB 202 956 INTRODUCTION

Water and food are basic human needs, but when provided to citizens waiting in line to vote they allegedly become the evils of "tumult and disorder." (1) Line-warming activities, also referred to as line relief services, (2) such as handing out food and water to voters, have come under siege in many states. (3) These attacks are part of a larger movement to lessen the measures that guarantee the right to vote across the country; attacks on the Voting Rights Act (VRA), (4) regulations restricting voting access across the country, and regulation of line-warming activities have become commonplace. (5) Court decisions and state regulations have eroded the paradigms protecting the "sacred right to vote--won at great cost in blood and treasure." (6)

In states where legislatures are restricting absentee and early voting, the resulting longer lines are predominantly comprised of people of color and centralized to urban areas. (7) States that prohibit distribution of these basic needs are contributing to the second-generation of voter disenfranchisement (8) --obstacles and barriers that restrict the impact of minority votes without overt blocks like literacy tests in the 1960s. (9) Thus, while the first-generation barriers restricting formal access have been overcome, these second-generation barriers have taken their place to allow access to the polls but diminish the impact of minority votes. (10)

This Comment will give an overview of two recent statutes in Florida and Georgia containing bans against these distributions, the subsequent litigation, and explore how American democracy can survive in a world of covert discrimination. Part I explains line-warming, its purposes, and the reactions to it." Part II discusses the regulatory environment of election laws and the recent bans in Florida and Georgia prohibiting line-warming. (12) Part III gives the legal background to the challenges against these prohibitions and explains the outcome in the courts. (13) Part IV describes the discriminatory impact that these prohibitions have on communities of color and urban areas. (14)

1. LINE-WARMING ACTIVITIES

   Line warming activities are actions taken by volunteers to aid and support individuals waiting in line to vote. (15) These actions include handing out water, snacks, umbrellas, fans, ponchos, chairs, and other similar items to citizens who are waiting in line to vote. (16) Some distribution efforts also hand out phone chargers, coloring books for children accompanying voters, or lactation pods for nursing mothers. (17) Some organizations, like the Greater Augusta's Interfaith Coalition, play music and provide other sorts of entertainment for those who are waiting in line. (18)

   Line-warming activities have a deep history in the civil rights movement and in political activism with and for communities of color. (19) These efforts acknowledge the sacrifice that some voters make to stand in these lines for hours to do their civic duty and make their voice heard. (20)

   Line-warming activities can be politically motivated, politically neutral, or a mix of both. Some act with the primary purpose of recruiting voters to their cause or slate, but others do not. (21) For example, a candidate for the County Recorder position in Arizona discussed how on the day of the 2020 election, he introduced himself to and distributed "granola bars to try and garner some favor" with those waiting in line. (22) Comparatively, organizations like the National Association for the Advancement of Colored People (NAACP), "regularly dispatch[] volunteers throughout the state to provide food, water, and other relief to voters waiting to cast their ballots in person." (23) Those volunteers, unlike the candidate mentioned above, are not trying to persuade voters to vote in line with a certain belief, candidate, or political affiliation. (24) Rather, they are trying to communicate the importance of staying in line and that each vote has impact and importance. (25)

   However, not everyone supports line-warming activities. In Georgia, line-wanning activities came under attack when an out-of-state donor tried to deliver pizzas to citizens waiting in line to vote in the 2020 elections. (26) The local officials claimed that such an action would be an incentive to voters to vote in the way that the organization, or candidate, would want--almost like a bribe. (27) But as these organizations and their legal counsel explain, these line-warmers do not reward only those who agree with them after discussing their voting plans. (28)

   Another concern is that polling locations do not have the staff or resources to closely monitor what content is being communicated when the goods are delivered. (29) For example, there was an incident during the 2020 election in Georgia where line-warming volunteers were wearing clothing and badges that identified their political party, beliefs, or candidate. (30) When the distribution becomes political in this way, many fear that line-warmers are engaging in electioneering and improperly influencing the voters in line. Do they change their vote because the man wearing a Republican pin gave them a banana? Many feel that on election day, voters should be free from any outside influence beyond their actual beliefs. (31)

   Many state legislatures have noted these concerns, resulting in the enactment of bans on such actions by states who deem them impermissible and a threat to democracy. (32) When such bans were passed in Georgia and Florida, organizations and volunteers brought suits alleging that the true threat to democracy is banning such line-warming activities. (33)

2. RECENT BANS ON LINE-WARMING

   Elections and the right to vote are integral to our system of democracy in the United States. When this right is threatened or potentially corrupted, as some believe happens with line-warming conduct, state legislatures react accordingly. (34) When enacting such regulations and laws, states are subject to congressional override of Article I, Section 4 and to judicial review of potential unconstitutionality or violation of federal statutes. However, after the Supreme Court struck down voting rights protections guaranteed by the VRA, states have been given more freedom to pass regulations that burden the right to vote.

   The Constitution and principles of federalism support the notion that the states determine their election processes and procedures. (35) The states are charged with enacting and regulating their election methods in both federal and state elections. (36) The Founding Fathers, when drafting the Constitution, explicitly announced that the "Times, Places and Manner of holding Elections... shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." (37) The Elections Clause establishes the power of Congress to intervene and enact regulations for state and federal elections that would preempt any contrary state regulation. (38) Thus, while states can regulate election procedures, they cannot run afoul of either the Constitution or enactments from Congress, such as the VRA, (39) or the First Amendment. (40) In determining that a prohibition on line-warming in Florida violated federal law, (41) Judge Walker of the Northern District of Florida acknowledged that there were constraints on the judiciary due to states having this power under Article I, Section 4, but that there are also constitutional safeguards that must be upheld regardless of the state's right to enact election regulations. (42)

   The Supreme Court has contributed to the renewed pressure on voting rights. In 2013, the Court ruled that a portion of the VRA of 1965 was unconstitutional in Shelby County v. Holder. (43) The VRA of 1965 was a bulwark of civil liberties and the protected the right to vote without burdens or discrimination on citizens. (44) Specifically, the Shelby County Court ruled that the coverage formula of Section 4, which required states with a history of discriminatory practices to have their election regulations cleared prior to enactment, was unconstitutional and no longer necessary to prevent discrimination. (45) Thus, the requirement of Section 5 that states would need preclearance prior to enforcing a regulation became inoperative. (46) As a result, discriminatory regulations and election practices must be challenged after they have been passed and gone into effect, rather than prior to enactment and subsequent harm. (47) The effects of Shelby County were immediate, including stricter voter identification provisions from the Texas legislature within 24 hours after the ruling came down. (48) States, like Texas, that were once covered by this section because of their history of discrimination, were free to enact regulations that might have disproportionate effects and reflect persistent racism. (49) In addition to stripping the VRA of its strength in Shelby County, states recently have been inflamed by the rhetoric spread by Former President Donald Trump and his supporters claiming that there is widespread voter fraud in the United States and that more stringent protections are necessary. (50) Congress could pass a new Section 4 formula that meets the Shelby County Court's guidance, but until then, states are free from preclearance.

   State statutes containing line-warming prohibitions have begun to emerge in...