Is Line Warming Legal?

The term vote buying conjures an image of a shadowy figure handing an envelope of cash to a voter and telling the voter whom to vote for. It’s unlawful in all 50 states to buy votes or bribe voters—that is, to give a person anything of value in exchange for their vote. And federal law prohibits making or offering an “expenditure” to any person, either to vote or withhold a vote, or to vote for or against any candidate.

Why?

Because buying votes clearly circumvents the democratic process. As U.S. Attorney Duane Evans said in connection with a vote-buying case in 2022: “We must have fair elections, free from the taint of corruption, to ensure a fully functional government.”

But what about line warming?

The pros and cons

Line warming is an informal term for practices like providing items with minimal value, such as a water bottle or snacks, to people waiting in line to vote. It’s unclear if this is vote buying. Voters, particularly in urban areas, often wait in line for long periods of time—sometimes in the rain or in sweltering or freezing weather.

Organizations (both political and nonpartisan) that engage in the practice, often as part of voter engagement efforts, typically do so with the intent of alleviating the burdens of waiting in long lines so that voters don’t become discouraged or run out of time and leave the line.

Of particular concern, poor and minority voters have historically faced longer wait times to cast their ballot than affluent White voters. Line warming can serve as a tool to make it easier to stay in line so eligible voters who want to vote can cast their ballot.

On the other hand, there can be legitimate concerns that a candidate or partisan organization providing a voter with an item of more than nominal value, given to the voter in the moments before voting, could unduly influence the voter’s decision. Every state has some type of restriction on political activities within a certain distance of polling locations when elections are taking place, and these restrictions ensure that voters aren’t being coerced by political campaigns while voting.

The legalities of line warming

But is line warming legal? It depends on where you are. In 2022, Gov. Brian Kemp signed S.B. 202 into law, and it made sweeping changes to Georgia’s election laws. The new law contains the following language:

“No person shall…give, offer to give, or participate in the giving of any money or gifts, including, but not limited to, food and drink, to an elector…” inside a polling place, within 150 feet of a polling place, or within 25 feet of any voter standing in line.

The law doesn’t differentiate between items given by a partisan organization or with a solicitation to vote for a particular candidate and items given by a nonpartisan organization without any such solicitation. In August 2023, a federal court struck down the provision that applied the food, drink, and gift ban within 25 feet of any voter standing in line while upholding the ban within 150 feet of a polling place. The decision was made in part because the court found that line warming likely constitutes expressive conduct protected by the First Amendment.

In New York, it has long been a crime to provide any “meat, drink, tobacco, refreshment or provision” with a value of more than $1 to a voter “in connection with or in respect of any election during the hours of voting on a day of a general, special, or primary election.” The $1 limit, set in 1906 when the bill was enacted, wasn’t indexed for inflation.

The law applies at any distance from a polling place, since, unlike most other states, there’s no specified distance at which the prohibition applies. There have been growing calls to end New York’s line-warming prohibition, and a lawsuit challenging it is currently pending.

In January 2023, the New York Senate passed a bill that would create an exception for items with nominal value, including snacks, water, soft drinks, and other refreshments. The bill hasn’t yet passed the state assembly.

Kentucky election voided

Kentucky law prohibits making or offering to make an expenditure to another person, either to vote or not vote, or to vote for or against any candidate or public question at an election, largely tracking the federal prohibition. Like other states, Kentucky also has laws that specifically prohibit candidates trying to influence voters at polling places during elections.

In 1997, the Kentucky Supreme Court voided the election of a candidate for alderman who’d visited multiple polling places on election day and had made free food available to both precinct workers and voters. The court found that the “outcome of the election was implicitly affected, or at the very least, the fairness of the election was impaired” by the candidate’s presence at the polling places during voting and the items of value made available to voters before they cast their ballot.

It remains unclear to what extent line warming, if conducted by a nonpartisan organization, would violate Kentucky law. Kentucky courts have found that providing rides to the polls, which do have nominal value, are permissible and don’t violate the vote-buying law.

Expect line warming to heat up

There is, undeniably, a difference between a candidate or campaign workers being present at polling places when voters are voting and clearly partisan organizations providing lavish meals or gifts to voters standing in line and a nonpartisan organization handing out bottles of water and snacks to voters stuck in long lines on election day.

Is handing a voter a water bottle, with a value of less than $2, going to influence a voter’s decision? It seems very unlikely. If that bottle of water will help the voter stay in line and cast their ballot, and in turn increase voter turnout, isn’t that something, as a democracy, we want to promote?

As in 2020 and 2022, we expect to see historically long lines to vote in 2024, which means line warming will get increased attention. Outside of more general vote buying and bribery laws, many states don’t have laws that either expressly prohibit or permit line warming. In the absence of clear guidance, conducting line warming activities can be a risk.

The disparity between states can make it difficult for both partisan and nonpartisan organizations that operate in more than one state, or even nationally, to know whether certain types of get-out-the-vote activities, which include line warming, are permissible. As more states address line warming, we expect that disparity to grow.