A three-judge panel at the 11th U.S. Circuit Court of Appeals questioned Wednesday whether providing food and water to voters waiting in line is a form of free speech protected by the First Amendment or an intrusion on the protected space near polling places.
The ban is best-known part of the state’s 2021 voting law, a far-reaching change to elections access and rules passed in the wake of President Donald Trump’s narrow loss.
It was even fodder for a Georgia-based story arc in the satirical TV show “Curb Your Enthusiasm.”
The groups behind a lawsuit opposing the ban, including the NAACP and several voting rights groups, asked the appeals court to uphold a lower-court ruling blocking the ban, which prohibits giving refreshments within 25 feet of any voter standing in a line stretching more than 150 feet from a polling place.
The law made handing out refreshments a misdemeanor, but there are no known cases of it being enforced.
Judge Timothy Corrigan asked whether giving out food and drinks should be allowed as a form of speech.
“Why isn’t the message that you’re standing in line to vote, you’re standing in line for maybe a long time, voting is important and we want to give you a bottle of water to express that?” Corrigan said. “Why isn’t that good enough?”
Solicitor General Stephen Petrany, who is representing the state in the appeal, told the judges they should reinstate the law, which was blocked by a lower court judge in 2023.
Credit: Gov. Brian Kemp's office
Credit: Gov. Brian Kemp's office
Petrany said there’s no freedom-of-speech right for groups to distribute snacks to voters, as they did during the heated 2020 election that led to the state law banning the practice.
“We don’t want voting to be a contact sport. We don’t want it be seen where people are dissuaded by a kind of raucous atmosphere,” Petrany said. “We want people to be able to stand in line and be basically unobstructed.”
Davin Rosborough, an attorney for the voting rights groups, said distributing snacks to voters is a form of protected speech.
“Plaintiffs’ activities symbolize solidarity and the importance of civic participation through obstacles, and observers reasonably understand this message,” Rosborough said. “The message here is, ‘My participation matters.’”
While some voters faced hourslong lines during the 2020 election and during peak hours of early voting in elections since then, average wait times on recent election days have generally ranged from two to four minutes.
Many other parts of the law had a more direct impact on voters by limiting ballot drop boxes, tightening absentee ballot deadlines, adding steps to request an absentee ballot and allowing activists to challenge the eligibility of voters.
Although most of the voting law has been upheld so far, the appeals court is weighing U.S. District Judge J.P. Boulee’s injunctions blocking the food-and-water ban and a requirement that voters to write their birth date on absentee ballot envelopes. Boulee found the birth date requirement to be immaterial to determining whether someone is qualified to vote after they’ve already provided identifying information, such as a driver’s license or Social Security number.
More than four years since the law passed, court challenges remaining pending in federal court. The U.S. Department of Justice withdrew the Biden administration’s lawsuit against the voting law earlier this year after President Donald Trump took office.
The appeals court panel includes two appointees of President George W. Bush, Corrigan and Circuit Judge Kevin Newsom, along with Circuit Judge Adalberto Jordan, an appointee of President Barack Obama.
The appeals court could rule in the coming months, and then the lawsuit opposing many other restrictions in Georgia’s voting law could move toward a trial.
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