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Michael McGough is the Los Angeles Times’ senior editorial writer, based in Washington, D.C.
Of all the provisions in Georgia’s new election law, the one that has provoked the most condemnation — understandably — is the criminalization of providing food and drink to voters waiting in line.
President Joe Biden, who called the law an “atrocity,” complained that “they passed a law saying you can’t provide water for people standing in line while they’re waiting to vote. You don’t need anything else to know that this is nothing but punitive design to keep people from voting. You can’t provide water for people about to vote? Give me a break.”
But this issue involves more than feeding the hungry or making it possible for them to vote.
In a lawsuit challenging the Georgia law, plaintiffs (who include a civil rights group and a unit of the African Methodist Episcopal Church) describe a practice called “line warming”:
“Through providing water and other resources, Plaintiff AME Church and others throughout Georgia engage in the type of interactive communication concerning political change that is appropriately described as core political speech.” The lawsuit adds: “This is protected speech under the 1st Amendment, and [the Georgia law’s] attempt to restrict that speech — via the imposition of criminal penalties — is unconstitutional.”
The plaintiffs reject the idea that they are using food and drink to induce voters to support particular candidates. The lawsuit notes that the AME Church “gives all voters, regardless of how they plan to cast their ballot, their encouragement and support.”
Providing voters with “the supplies they need,” the lawsuit says, “encourages them to stay in line, reminds them of the importance of casting a ballot, and affirms their value as a person and a voter. Line warmers create a sense of community, reminding voters that voting is a joyful thing and a civic responsibility.”
Of course, there always has been a social component to voting. Think of “get out the vote” campaigns and petition drives to place issues on the ballot.
A lot of Americans grew up with a sanitized view of voting: that it’s something done by an autonomous individual hermetically sealed off from outside influences. That’s reflected in various state restrictions on politicking close to a polling place.
Georgia’s law applies that concern even to absentee voting. One section requires absentee voters to affirm that “I have marked and sealed this ballot in private and have not allowed any unauthorized person to observe the voting of this ballot.” (“You have to leave the kitchen, Mom. I’m voting.”)
But no voter is an island, and some attempts to “protect” voters or the election process have run into legal obstacles. In 2018 the Supreme Court struck down on First Amendment grounds an overly broad Minnesota law that prohibited voters from wearing a wide variety of political hats, T-shirts and pins at polling places. In 2016 a federal appeals court in Boston struck down New Hampshire’s ban on so-called ballot selfies — photographs of a completed ballot that voters share on social media.
“Socializing” the vote isn’t just a recent phenomenon. In a 2010 opinion, the late Supreme Court Justice Antonin Scalia pointed out that voting was public in America until 1888, when states started adopting the Australian secret ballot.
“We have acknowledged the existence of a 1st Amendment interest in voting,” Scalia wrote, “but we have never said that it includes the right to vote anonymously. The history of voting in the United States completely undermines that claim.”
It goes without saying that voters shouldn’t be bribed to support a particular candidate or subjected to harangues as they prepare to cast their ballots. Nor, despite Scalia’s history lesson, should we give up on the secret ballot.
But it’s unrealistic to pretend that voting exists in a political or social vacuum. Voters are susceptible to all sorts of influences, from campaign ads to the opinions of family members in person or on Facebook. “Line warming” with food and drink is only part of the picture.