Essay by Alyssa Clune*
2 Fordham L. Voting Rts. & Democracy F. 129

Line-warming bans present an additional hurdle for voters across America, especially in an era of historically few polling locations and historically long lines to reach the ballot. Particularly in Eleventh Circuit states like Georgia and Florida, line-warming bans, in conjunction with long wait times, have had a disparate impact on Black communities and their ability to cast ballots in key swing districts. Nevertheless, attempts to bring racial discrimination claims against these bans have not been successful in the Eleventh Circuit. This Essay proposes a new strategy to tackle line-warming bans under an ADA framework. It analyzes the harm that these bans have on disabled voters—especially the intersectional harm they present for Black disabled voters—and suggests that a claim brought under the ADA may succeed in the Eleventh Circuit, even where other constitutional claims have failed.

Introduction

Over the last two decades, conservative states have increasingly weakened voting rights, including passing stricter voter ID laws, purging voter rolls, and limiting the hours of voting.¹ A less-discussed method of voter disenfranchisement is the expansion of “line-warming” bans that prohibit distribution of water or food anywhere along voting lines.² These bans come in an era when voting accessibility is already threatened by widespread closure of polling places,³ historically long wait times and fewer resources for the locations that remain open, especially in majority-minority communities.⁴ Higher wait times discourage voting turnout,⁵ prompting many local organizations to distribute refreshments that ease the burden of waiting and keep voters from giving up and going home.⁶

Southern swing states with conservative leadership like Georgia and Florida have enacted laws with line-warming bans that restrict communities from supporting their voters while they wait.⁷ Though activists have had some success overturning the bans, recent Eleventh Circuit caselaw suggests that future constitutional challenges to the legality of line-warming bans will fail.⁸ That said, a discrimination claim against line-warming bans may succeed, if brought under disability law instead.

This Essay will discuss how the Americans with Disabilities Act (“ADA”) can provide an alternative path to overturning discriminatory line-warming bans in the Eleventh Circuit. First, Part I provides a landscape of recent voter restrictions and line-warming bans enacted by states in the Eleventh Circuit, as well as the judicial response to these laws. Part II discusses the potential claims that plaintiffs may bring to fight the bans and which of these claims have the highest likelihood of success given recent precedent. Last, Part III argues that Title II of the ADA prohibits states—including Eleventh Circuit states—from enacting any line-warming ban that restricts “relief” to disabled voters because it frustrates their ability to participate in the political process.⁹

I. Line-Warming Bans: The Newest Obstacles to Voting Rights

Since the nineteenth century, voting has been considered “a fundamental political right,”¹⁰ but it has never been equally accessible. Conservative lawmakers and officials have attempted to restrict voting access across their state’s Black population, drastically limiting available polling locations and increasing requirements for mail-in ballots.¹¹ In the 2020 election, disparities in polling times suggested that poorer and less white neighborhoods experienced longer voting lines than more affluent and majority-white neighborhoods—often upwards of an hour.¹² The longer and more burdensome the wait, the more likely that voters will turn away or decline to vote in future elections.¹³

Many organizations have attempted to ease the burden of long wait times by passing out water and food to queuing voters.¹⁴ Especially for Black voters, who are more likely to cast their ballots in-person than other demographics,¹⁵ line-warming provides a sense of community and material support to withstand the long wait times.¹⁶ The relief is especially crucial for disabled community members, who face greater intersectional barriers to voting in-person on long lines.¹⁷ Yet some states, like Georgia and Florida, aim to snuff these efforts by criminalizing line relief across the board.¹⁸ Though the U.S. Supreme Court has upheld more narrowly tailored restrictions when limited to a “buffer zone” in the immediate vicinity of the polling place,¹⁹ the new bans put a blanket restriction on relief for all voters, “no matter [their] distance from the polls.”²⁰

These bills have been met with fierce backlash and multiple lawsuits challenging the laws’ legality on a range of discrimination, free speech, and due process grounds.²¹ In Georgia, for example, community organizations successfully fought Governor Brian Kemp’s line warming ban in Sixth District of the African Methodist Episcopal Church v. Kemp.²² The district court overturned the ban exclusively on First Amendment grounds, citing restrictions that the law places on line-warmers’ constitutionally protected expressive conduct.²³ The Kemp court never reached the merits of the disability or racial discrimination claims.²⁴

Around the same time, the Eleventh Circuit came to the opposite conclusion in League of Women Voters of Florida, Inc. v. Florida Secretary of State.²⁵ There, the court ruled that Florida’s line-warming ban was not discriminatory under the Voting Rights Act (“VRA”) or the Fourteenth and Fifteenth Amendments, while also dismissing alleged First Amendment violations related to expressive conduct.²⁶ The Eleventh Circuit’s dismissal of these claims indicates a need to reevaluate existing avenues for challenging line-warming bans.

II. Avenues For Challenging Line-Warming Bans In The Eleventh Circuit

Line-warming bans present potential violations of multiple areas of law. Previously, plaintiffs have challenged these statutes under the Constitution, the ADA, and a myriad of voting laws such as the VRA. The grounds for these violations are also varied, including claims of racial discrimination, disability discrimination, and free speech infringement.

One way to challenge line-warming bans is on racial discrimination grounds. These claims may arise under both the Constitution and the VRA. For an equal protection claim under the Fourteenth and Fifteenth Amendments, plaintiffs must prove both racially discriminatory intent and discriminatory impact.²⁷ Pursuant to the test developed by the U.S. Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp.,²⁸ a showing of disparate impact alone is not enough.²⁹ On the other hand, Section 2 of the VRA only requires discriminatory impact to establish a violation, and the analysis is based on the “totality of circumstances.”³⁰

The plaintiffs in both Kemp and League of Women Voters argued the line-warming bans were racially discriminatory on constitutional and VRA grounds,³¹ but neither succeeded. The court in Kemp ignored the arguments of racial discrimination entirely,³² while the federal appellate court in League of Women Voters overruled the district court findings of discriminatory intent and impact, finding that the evidence did not meet the “high standard” necessary for a Section 2 claim under the VRA—much less the intent prong of a due process claim.³³ Though the decision left open the possibility that line-warming bans with greater evidence of discrimination could violate the Fourteenth and Fifteenth Amendments, League of Women Voters indicates that the Eleventh Circuit is highly skeptical of these challenges, even when only reviewing for clear error.³⁴

The First Amendment presents another constitutional avenue to challenge line-warming bans. The First Amendment not only protects free speech, but also extends to expressive conduct that “inten[ds] to convey a particularized message.”³⁵ If a law stifles the content of that expressive conduct, it is usually presumed unconstitutional unless it can survive strict scrutiny review.³⁶ However, when the protected conduct may impact or interfere with voting, the standard is modified to the less demanding Burson analysis, which only requires the law to be “reasonable” while not “significantly imping[ing]” constitutional rights.³⁷

While this constitutional argument has had more success in the Eleventh Circuit than its Fourteenth and Fifteenth Amendment counterparts, it is not watertight. True, the Kemp court overruled Georgia’s line-warming ban on exactly these grounds, holding that a ban extending indefinitely beyond the polling place’s 150-foot buffer zone no longer fulfilled the Burson analysis’ requirements.³⁸ Yet that sentiment was not shared by the Eleventh Circuit, who determined that Florida’s line-warming ban did not implicate any substantial First Amendment rights in League of Women Voters.³⁹ In fact, the appellate court declined to engage in any Burson analysis at all. The court condensed the issue down to a single sentence that justified the ban simply because courts have upheld “restrictions [of] First Amendment activity[] around polling places” before.⁴⁰ League of Women Voters’ dismissive attitude towards this type of First Amendment claim suggests that the Eleventh Circuit would not recognize the same degree of line-warming speech protections as Kemp. This leaves Kemp’s repeal of Georgia’s line-warming ban vulnerable to appeal. Moreover, it means that any future First Amendment challenges to line-warming bans in Eleventh Circuit districts may not be a permanent solution.

Disability law provides a third avenue to fight line-warming bans. The ADA,⁴¹ perhaps the most significant piece of legislation ever passed to protect disability rights,⁴² built off the framework in Section 504 of the Rehabilitation Act of 1973.⁴³ Specifically, Title II of the ADA ensures that people with disabilities have equal access to the benefits of government services, including the equal opportunity to vote.⁴⁴ Though the ADA only provides a “limited remedy” for reasonable accommodations,⁴⁵ its scope is broader than most racial discrimination laws because it does not require intentionality, nor does it require statistical evidence of disparate impact—an “individual’s experience with structural inequality” is enough.⁴⁶

This could be a powerful tool in the context of line-warming bans, which not only target racial minority districts, but also communities with higher rates of disability. To be sure, Black populations experience a higher national incidence of disability than their white counterparts, and in some localities, the rate is as much as 250 percent higher.⁴⁷ Accordingly, any discriminatory impact of line-warming bans is compounded for Black disabled voters, who face the access issues that come with both racial and disability-based exclusion.⁴⁸ Fortunately, ADA protections are not limited by a court’s interpretation of intent or statistical significance.⁴⁹ Moreover, Eleventh Circuit district courts have yet to weigh the merits of a disability argument against line relief, leaving the door open for future cases.⁵⁰ For this reason, an ADA claim against line-warming bans represents the most promising avenue for successfully challenging these laws.

III. Challenging Line-Warming Bans Under the ADA

Line-warming bans violate the rights of disabled voters under the ADA. This part will navigate how a challenge to line-warming bans could succeed in the Eleventh Circuit, even where other discrimination claims have failed. Part III.A analyzes if line-warming bans present a prima facie case of discrimination under Title II of the ADA. Part III.B discusses likely state defenses and counter arguments, weighing their merits against Eleventh Circuit precedent. Part III.C presents a reasonable modification to line-warming bans that would bring the laws in compliance with the ADA.

A. Making a Prima Facie Case Against Line-Warming Bans Under Title II of the ADA

A claim that line-warming bans violate the ADA meets the requirements for a prima facie case. To bring a claim under Title II of the ADA, a plaintiff must allege that (1) they are a “qualified individual with a disability;” (2) they were “excluded from participation in or . . . denied the benefits of the services, programs, or activities of a public entity;” and (3) the exclusion or denial was “by reason of such disability.”⁵¹ Furthermore, public entities must make their services “readily accessible” to people with disabilities when the program is “viewed in its entirety.”⁵²

The disabled voting populations of any state with an active line-warming ban would be qualified individuals under the meaning of 42 U.S.C. § 12132. Individuals are “qualified” under Title II if they “meet[] the essential eligibility requirements for the . . . participation in programs or activities provided by a public entity.”⁵³ Any disabled, eligible voter in the upcoming election would qualify, including the disabled members of the Black community that are particularly likely to experience long wait times.⁵⁴ Furthermore, a state enforcing the line-warming ban is indisputably a public entity, given that the ADA specifically lists states within their definition.⁵⁵

Line relief provides a much-needed service to disabled voters, the prohibition of which will exclude these voters from participation in the political process under the second prong of the Title II analysis. Line-warming bans come strategically in an era where polling wait times are as high as five hours in key districts, prompting many voters to consider leaving.⁵⁶ This choice to stay or leave is even more complicated for disabled individuals who may require additional accommodations to wait that long. For instance, conditions like diabetes, epilepsy, and hypertension—all of which are covered by the ADA⁵⁷—have symptoms that worsen without access to food or water and may even become fatal.⁵⁸ Pregnant and elderly individuals, who commonly present disabilities covered by the ADA,⁵⁹ also have a greater need to hydrate and stay cool in the heat.⁶⁰ Line-warmers provide relief for these individuals, allowing disabled voters to stay safe and hydrated, while also reinforcing the “importance of political participation” for all.⁶¹ When states prohibit line-warming, it effectively excludes disabled voters who depend on these services for support while waiting to vote.

Last, these bans exclude disable voters by reason of their disability under the Title II’s third prong. Such policies eliminate the opportunity for disabled individuals to access water and food without leaving their spot. These situations force disabled voters to choose between a prohibitively long wait without accommodations, or to forego their civic duty altogether in order to protect their health.⁶² Under these conditions, it is inevitable that many elderly and disabled voters will turn away to avoid the risk of worsening their health conditions. Given that the line-warming ban directly contributes to these distressing conditions, it is inherently exclusionary.

B. State Defenses Against a Prima Facie Case Are Likely to Fail

A state defending such a claim is likely to present several counterarguments against challenges to its line-warming ban. Yet none of these arguments hold water when evaluated against Eleventh Circuit precedent, federal caselaw, and against the statutory language of the ADA itself.

1. Inconvenience Does Not Constitute Meaningful Access Under the ADA

In response to ADA claims, states often insist that they did not foreclose disabled people entirely from a process or service.⁶³ By arguing that disabled voters are just “inconvenienced,” rather than truly excluded from access, states may claim that no violation occurred.⁶⁴ Yet prevention from participation is not required to show a prima facie case, only that the program is not “readily accessible.”⁶⁵ If a program or activity is “unfit” for a disabled person, it is not readily accessible, “regardless of whether the disabled person manages in some fashion to attend.”⁶⁶

Likewise, when voters have disabilities that impede their ability to wait on long lines without food or water, but do so anyway, they experience a voting procedure that is not readily accessible. Though some may persevere without relief, despite the health and safety issues it poses,⁶⁷ this does not meet the bar for accessibility under the ADA. In People First of Alabama v. Secretary of State for Alabama,⁶⁸ the Eleventh Circuit considered a similar ban on roadside voting during the Covid-19 pandemic. The court found that the policy violated the ADA because “[f]orcing a high-risk voter to choose between risking her health and life or abandoning her right to vote easily satisfies the ‘not readily accessible’ requirement” for a Title II suit.⁶⁹

Disabled in Action v. Board of Elections⁷⁰ provides another helpful illustration of this distinction, even when disabled voters’ lives were not at risk. The Disabled in Action plaintiffs managed to safely vote at their designated polling location, but it was not without great obstacles, including a non-compliant ADA ramp and a lack of functional ballot-marking machines for blind voters.⁷¹ The defendant, the New York City Board of Elections, tried to hide behind the plaintiffs’ success in casting a ballot in spite of these challenges, claiming that absent proof “that any voter has been deprived of the right to participate in an election as a result of barriers to accessibility,” no violation occurred.⁷² Rejecting this argument, the court stated that the standard is not complete disenfranchisement, but simply a denial of meaningful access to cast a private ballot on election day.⁷³ The plaintiffs’ inability to take part in this process with dignity was enough to deter them and constitute injury.⁷⁴ Similarly, the burden of withstanding an hours-long line without food or water would also deter disabled voters from full participation, injuring them regardless of if they manage to vote.

2. States Do Not Have Meaningful Alternatives or Accommodations for Disabled Voters

States may also defend line-warming bans by focusing on the alternatives they already provide to disabled voters. But again, none of these alternatives truly provide disabled voters with meaningful access to the political process.

States may argue that line-warming bans do not present hardship for voting access when the system is “viewed in its entirety,” since long lines that would require relief do not exist across every polling location at every time of day.⁷⁵ This parallels an argument from League of Women Voters, where the Eleventh Circuit criticized the “fatally imprecise” snapshot data that showed longer lines in majority-Black neighborhoods.⁷⁶ The court found the snapshot data unreliable, because wait times “can vary dramatically throughout the day.”⁷⁷ In an ADA context, states may bring similar arguments, suggesting that even if the line is too long for a disabled voter to wait on without food or water, other locations would still have short enough lines to be accessible.⁷⁸ Because disabled voters have access to these locations throughout the day, all they need do, under such logic, is cast their ballot when it is less busy.

On a surface level, League of Women Voters may support this argument, but it collapses under its own logic. As the Eleventh Circuit has made clear in prior line-warming litigation, lines at any given polling location will vary, and even live data providing snapshots of those wait times are not accurate enough to show that a line is consistently the same length.⁷⁹ True, not every facility need be accessible if there are comparable services readily accessible at another location, but those alternatives must actually be “readily accessible.”⁸⁰ If snapshot data is not an accurate measure of how long lines are, it cannot be an accurate measure of how short lines are either. Even if such data was provided to disabled individuals to help them locate alternative voting facilities, it is too variable to be a “readily accessible” alternative. Moreover, when faced with a designated polling location that is inaccessible, disabled voters may be too confused or discouraged to find a new accessible location.⁸¹ This chilling effect has led federal courts to find “alternative location” solutions inadequate under the ADA.⁸²

States with line-warming bans may also point to the adequacy of alternative voting methods, such as absentee voting. This argument presents somewhat of a paradox, considering that many states that have established recent line-warming bans have done so alongside other provisions that increase the restrictions for applying and submitting absentee ballots.⁸³ Despite the irony, Florida has recently relied on its absentee ballot program to bolster the legitimacy of other restrictive voting laws.⁸⁴ Indeed, the state’s argument was compelling enough to sway the Eleventh Circuit.⁸⁵ Therefore, there is a high chance states may try to use evidence of their absentee voting program as a defense for line-warming bans too.

Nevertheless, the Eleventh Circuit still has a history of protecting the right to vote in-person. In People First, the court upheld the right to in-person accommodations for elderly voters who were ineligible for absentee ballots.⁸⁶ Furthermore, the court disagreed with Alabama’s contention that absentee ballot applications presented little burden for voters.⁸⁷ Thus, even if absentee programs constitute one form of accommodated voting, it cannot be the only alternative, especially when restrictive requirements and deadlines bar certain disabled voters from participating.⁸⁸ Though supportive of absentee voting requirements, ⁸⁹ the Eleventh Circuit still has a strong interest in sustaining the voting rights of those who do not meet the requirements.

In People First, the plaintiffs only sought in-person voting due to their ineligibility for the absentee program.⁹⁰ However, even when disabled plaintiffs are absentee-eligible, federal courts often still recognize the rights of disabled voters to cast a ballot in person. In Westchester Disabled on the Move, Inc. v. County of Westchester,⁹¹ a New York federal court found that absentee ballots were “inadequate substitute[s]” for in-person voting.⁹² Indeed, not only does absentee voting require registration and returning a ballot well before the deadline, it also gives disabled voters less time to consider their choice.⁹³ Therefore, when a state’s alternatives “impose additional costs, risks and inconveniences on disabled voters not faced by others,” those voters experience irreparable harm.⁹⁴ Though Westchester Disabled was not an Eleventh Circuit decision, its logic is consistent with the reasoning in People First, where the Eleventh Circuit expressed similar concern about the costs and burdens that disabled voters face when casting their ballot.⁹⁵

C. Establishing a Modification to the Line-Warming Ban

An injunction on prohibitions of non-partisan line relief would make state line-warming bans ADA compliant. After plaintiffs establish a prima facie case that a legal provision is discriminatory under the ADA, they must present a reasonable modification or accommodation to the challenged law.⁹⁶ This is a limited remedy, requiring only modifications that would not unduly burden the state or “fundamentally alter the nature of the service provided.”⁹⁷

Exempting non-partisan line relief would not fundamentally alter a state’s voting programs. This change would permit states to protect voters from solicitors aiming to “influence the vote,” while curing any chilling effect that a full ban has on disabled voters.⁹⁸ If anything, non-partisan line relief would reduce the influence that long lines have on the vote by ensuring that those with a right to cast a ballot can do so without fear of blood sugar levels dropping or dehydration.

Though states may argue the modification is overly inclusive, there is no middle ground that would allow the ban to be narrowly tailored enough to avoid violating the ADA. The League of Women Voters court cites concerns with how election staff may “struggle to make the requisite judgment call” about what line-warming conduct is legal based on if it affects an individual’s state of mind.⁹⁹ This challenge would only be exacerbated by requiring case-by-case determination of whether each recipient of relief is disabled, especially if the condition is not apparent.¹⁰⁰ Whether an interaction is a form of partisan solicitation is a far easier determination to make, and one that does not make any fundamental alterations to state voting.

In fact, the injunction on a full line-warming ban does not require the state to do anything at all, or take on any burden. As the Eleventh Circuit held in People First, a remedy that enjoins a state from prohibiting something—such as line-warming—does not “fundamentally alter[] anything.”¹⁰¹ In other words, a prohibition on prohibitions does not require any state action or intervention, but instead merely mandates non-intervention. Just like the remedy in People First, an injunction on line-warming bans would not “require [state officials] or anybody else to implement” line relief efforts.¹⁰² It requires no additional cost or burden on the states, and may even lower costs by saving resources which would otherwise be used to enforce non-partisan line relief.

Conclusion

The Eleventh Circuit’s reluctance to acknowledge any constitutional violation or racial discrimination within line-warming bans suggests that impact litigators must look elsewhere for relief. The ADA offers a solution to this intersectional problem due to its robust discrimination protection and individualized, experience-based analysis. Title II of the ADA gives rise to a claim that line-warming bans discriminate against disabled voters by depriving them of equal opportunity to participate in the political process. A claim brought like this would likely be successful in the Eleventh Circuit and would enjoin states from enacting overly broad solicitations provisions, thus protecting the voting rights of disabled and Black populations.

J.D. Candidate, 2025, Fordham University School of Law; B.A., 2020, Tulane University. Thank you to the staff of the Voting Rights and Democracy Forum for their time and effort editing this piece. I especially appreciate Thomas Wallace, the Volume III Editor-in-Chief, and Jason D’Andrea, the Volume I Editor-in-Chief, for their helpful feedback and guidance.

References:

1
Voter Suppression, Brennan Ctr. For Just., https://www.brennancenter.org/issues/ensure-every-american-can-vote/voter-suppression [https://perma.cc/RQR9-H49V] (last visited Oct. 14, 2024).
2
Courtney Cohn, A Deep Dive Into Line-Warming Bans as Federal Court Overturns New York’s Law, Democracy Docket (Jul. 2, 2024), https://www.democracydocket.com/analysis/a-deep-dive-into-line-warming-bans-as-federal-court-overturns-new-yorks-law [https://perma.cc/C3CY-BBEZ].
3
See, e.g., Ellis Champion, Michigan GOP Could Eliminate 20% of Polling Locations, Democracy Docket (Nov. 17, 2021), https://www.democracydocket.com/news-alerts/michigan-gop-could-eliminate-20-of-polling-locations [https://perma.cc/L83B-2S43].
4
See Mac Brower, How Long Lines Affect Turnout, Democracy Docket (Mar. 3, 2022), https://www.democracydocket.com/analysis/how-long-lines-affect-turnout [https://perma.cc/A7PN-BRZB]; see also Christopher Famighetti, Long Voting Lines: Explained, Brennan Ctr. for Just. (Nov. 4, 2016), https://www.brennancenter.org/our-work/research-reports/long-voting-lines-explained [https://perma.cc/TJ6V-SUBE].
5
See Brower, supra note 4.
6
See First Amended Complaint at 4, Sixth Dist. of the Am. Methodist Episcopal Church v. Brian Kemp, No. 21-CV-01284 (N.D. Ga. May 24, 2021) (“Countless Black Georgians—including those who have disabilities—waited for hours in needlessly long lines, where they were comforted and sustained by free water and refreshments offered by an array of civic and religious organizations.”).
7
See S.B. 202, 156th Gen. Assemb., Reg. Sess. (Ga. 2021); S.B. 90, 123rd Reg. Sess. (Fla. 2021). Note that these types of line-warming bans are not exclusive to the Eleventh Circuit or to the South. A similar line-warming ban was in place in New York until a recent federal decision overturning the ban on Fourteenth and First Amendment grounds. The discussion within this Essay will be limited to the Eleventh Circuit, but for more information on New York’s line-warming ban litigation, see Brooklyn Branch of the NAACP v. Kosinski, No. 21-cv-07667, 2024 U.S. Dist. LEXIS 95799, at *3 (S.D.N.Y. May 30, 2024).
8
Compare Sixth Dist. of the Afr. Methodist Episcopal Church v. Kemp (In re Ga. Senate Bill 202), No. 21-mi-55555, 2023 U.S. Dist. LEXIS 144919 (N.D. Ga. Aug. 18, 2023) (overturning the line-warming ban in Georgia), with League of Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905 (11th Cir. 2023) (upholding a line-warming ban in Florida).
9
See infra Part III.
10
Bertrall L. Ross II, Fundamental: How the Vote Became a Constitutional Right, 109 Iowa L. Rev. 1703, 1715 (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).
11
See Stephen Fowler, Why Do Nonwhite Georgia Voters Have to Wait in Line for Hours? Too Few Polling Places, NPR (Oct. 17, 2020, 5:01 AM), https://www.npr.org/2020/10/17/924527679/why-do-nonwhite-georgia-voters-have-to-wait-in-line-for-hours-too-few-polling-pl [https://perma.cc/9YD3-XUZR]; Kelly Mena, Fredreka Schouten, Dianne Gallagher & Pamela Kirkland, Georgia Republicans Speed Sweeping Elections Bill Restricting Voting Access into Law, CNN (Mar. 26, 2021, 6:30 AM), https://www.cnn.com/2021/03/25/politics/georgia-state-house-voting-bill-passage/index.html [https://perma.cc/WGN9-NEB5]; Rachel Selzer, 11th Circuit Upholds Most of Florida’s Major 2021 Voter Suppression Law, Democracy Docket (Apr. 27, 2023), https://www.democracydocket.com/news-alerts/11th-circuit-upholds-floridas-major-2021-voter-suppression-law [https://perma.cc/AUS5-RBXP].
12
See Kevin Quealy & Alicia Parlapiano, Election Day Voting in 2020 Took Longer in America’s Poorest Neighborhoods, N.Y. Times (Jan. 4, 2021), https://www.nytimes.com/interactive/2021/01/04/upshot/voting-wait-times.html [https://perma.cc/W398-PMSR].
13
See id.; Brower, supra note 4.
14
See Press Release, Am. C.L. Union, Voting Rights Groups File Emergency Motion to Lift Georgia’s Line Relief Ban in 2024 Elections (Apr. 24, 2023), https://www.aclu.org/press-releases/voting-rights-groups-file-emergency-motion-to-lift-georgias-line-relief-ban-in-2024-elections [https://perma.cc/Q7JL-WT3N] (describing how their clients, “Sixth District of the American Methodist Episcopal Church, Delta Sigma Theta Sorority, Georgia ADAPT, and the Georgia Advocacy Office” could previously “offer a bottle of water or a snack to voters waiting in long lines at the polls” before the line-warming ban).
15
See Pew Rsch. Ctr., Sharp Divisions on Vote Counts, as Biden Gets High Marks for His Post-Election Conduct 20 (2020).
16
See League of Women Voters, 66 F.4th at 929 (citing the district court’s finding that line relief is part of the “communitarian act” of voting for many Black voters).
17
See Natalie M. Chin, Centering Disability Justice, 71 Syracuse L. Rev. 683, 747–48 (2021); see also infra notes 58–62 and accompanying text (describing the harm that waiting on long lines can cause disabled voters).
18
See S.B. 202, 156th Gen. Assemb., Reg. Sess. (Ga. 2021); S.B. 90, 123rd Reg. Sess. (Fla. 2021); see also Press Release, Am. C.L. Union, supra note 14.
19
See Burson v. Freeman, 504 U.S. 191, 208 (1992) (“The real question then is how large a restricted zone is permissible or sufficiently tailored.”).
20
Kemp, 2023 U.S. Dist. LEXIS 144919 at *71.
21
See Chin, supra note 17, at 747 (referencing the “broad coalition of civic, religious, civil and disability rights groups” and their lawsuit against “the disproportionate impact that [Georgia’s] S.B. 220 will have on voters of color with disabilities and Black Georgians with disabilities” (citing First Amended Complaint, supra note 6)); Press Release, Am. C.L. Union, supra note 14.
22
No. 21-mi-55555, 2023 U.S. Dist. LEXIS 144919 (N.D. Ga. Aug. 18, 2023).
23
Id. at *65.
24
Compare id. (ruling only on First Amendment grounds, without mention of race or disability), with First Amended Complaint, supra note 6 (bringing claims on Voting Rights Act (“VRA”), ADA, and First and Fourteenth Amendment grounds).
25
66 F.4th 905 (11th Cir. 2023).
26
See generally id. But see id. at 948 (finding a four-word portion of the solicitation provision “unconstitutionally vague” under the Fourteenth Amendment, but maintaining most of the provision).
27
See Greater Birmingham Ministries v. Sec’y of Ala., 992 F.3d 1299, 1321 (11th Cir. 2021) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
28
429 U.S. 252 (1977).
29
See id. at 264–68 (holding that proof of discriminatory intent is necessary to succeed on an equal protection claim, and can be shown through “historical background,” “events leading up [to] the challenged decision,” “[d]epartures from the normal [procedure],” and “statements by members of the decisionmaking body, minutes of its meetings, or reports”).
30
Greater Birmingham Ministries, 992 F.3d at 1328–29.
31
See First Amended Complaint, supra note 6, at 10; League of Women Voters, 66 F.4th at 918.
32
See supra note 20 and accompanying text.
33
League of Women Voters, 66 F.4th at 943.
34
See id. at 936–37 (finding the lower court’s analysis of “extremely limited” studies to determine the ban’s disparate impact constituted a clear error). See also id. at 921 (“We will not find clear error unless our review of the record leaves us with the definite and firm conviction that a mistake has been committed.” (quoting U.S. Commodity Futures Trading Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018))).
35
Texas v. Johnson, 491 U.S. 397, 404 (1989).
36
See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (stating that content-based laws can only survive strict scrutiny “if the government proves that they are narrowly tailored to serve compelling state interests”).
37
Sixth Dist. of the Afr. Methodist Episcopal Church v. Kemp (In re Ga. Senate Bill 202), No. 21-mi-55555, 2023 U.S. Dist. LEXIS 144919, at *57–58 (N.D. Ga. Aug. 18, 2023) (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)).
38
See id. at *60–61.
39
See League of Women Voters, 66 F.4th at 948.
40
Id.
41
Public L. No. 101-336, 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. §§ 12101–12213).
42
See Margaret C. Jasper, Legal Almanac: The Americans With Disabilities Act § 1:1, Westlaw LASMDA (database updated Oct. 2012).
43
Pub. L. No. 93-112, 87 Stat. 355, 394 (1973) (codified as amended at 29 U.S.C. §§ 701–796).
44
See 42 U.S.C. § 12132; Jasper, supra note 42, at § 1:4.
45
28 C.F.R. § 35.130(b)(7) (2024).
46
See Kimani Paul-Emile, Blackness as Disability?, 106 Geo. L.J. 293, 325–26 (2018).
47
See Martha Ross & Nicole Bateman, Disability Rates Among Working-Age Adults Are Shaped by Race, Place, and Education, Brookings (May 15, 2018), https://www.brookings.edu/articles/disability-rates-among-working-age-adults-are-shaped-by-race-place-and-education/#:~:text=Blacks%20and%20Hispanics%20both%20exhibit,
up%20to%202.5%20times%20greater [https://perma.cc/S83N-WHXW].
48
See Chin, supra note 17, at 747.
49
See supra note 46 and accompanying text; cf. supra notes 33–34 and accompanying text.
50
See supra note 24.
51
42 U.S.C. § 12132.
52
28 C.F.R. § 35.150(a) (2024).
53
People First of Ala. v. Sec’y of State for Ala., 815 F. App’x 505, 514–15 (11th Cir. 2020) (quoting United States v. Georgia, 546 U.S. 151, 153–54 (2006)).
54
See supra Part I.
55
See 42 U.S.C. § 12131 (“The term public entity means . . . any State or local government.”).
56
See, e.g., Fowler, supra note 11 (reporting some Georgia voters waiting “more than five hours” in the heat and rain, while others “consider[] not casting a ballot at all”).
57
See 29 C.F.R. § 1630.2(j)(3)(iii) (2024) (listing diabetes and epilepsy as impairments covered by the ADA);Toland v. Bellsouth Telecomms., LLC, No. 15-CV-2441, 2017 U.S. Dist. LEXIS 211497, at *3 (N.D. Ga. Aug. 9, 2017) (finding hypertension to be an ADA-protected condition when it “substantially limits a major life activity”).
58
See The Link Between Dehydration and Blood Pressure, Cleveland Clinic (Feb. 2, 2023), https://health.clevelandclinic.org/dehydration-and-blood-pressure [https://perma.cc/L4GQ-UXF3]; Epilepsy and Seizures, Nat’l Inst. Neurological Disorders & Stroke (last updated Jul. 19, 2024), https://www.ninds.nih.gov/health-information/disorders/epilepsy-and-seizures [https://perma.cc/J2Y2-9SFV]; Andrea Aguilar, The Importance of Snacking When You Have Diabetes, Mich. State Univ. Extension (Sept. 24, 2015), https://www.canr.msu.edu/news/the_importance_of_snacking_when_you_have_diabetes [https://perma.cc/K2PV-425Q].
59
See Mary Crossley, The Disability Kaleidoscope, 74 Notre Dame L. Rev. 621, 703–04 (1999) for a comparison of the EEOC’s treatment of pregnancy and old age under disability law. Though neither pregnancy nor advanced age are considered disabilities due to their status as “natural consequence[s]” of life, disabilities that constitute impairments under the ADA often go “hand in hand” with these “natural” conditions. Id. at 672, 703–04.
60
See Kristie Auman-Bauer, Hydration Can Impact Pregnancy and Birth Outcomes, Penn. State Univ. (July 12, 2021), https://www.psu.edu/news/research/story/hydration-can-impact-pregnancy-and-birth-outcomes [https://perma.cc/QG7W-VGRR]; Tony Hicks, As You Get Older, You Need to Drink More Water. Here’s Why, Healthline (Oct. 6, 2020), https://www.healthline.com/health-news/as-you-get-older-you-need-to-drink-more-water-heres-why [https://perma.cc/Z9KT-A4CH] (citing Robert D. Meade, Sean R. Notley, Maura M. Rutherford, Pierre Boulay & Glen P. Kenny, Ageing Attenuates the Effect of Extracellular Hypersmolality on Whole-Body Heat Exchange During Exercise-Heat Stress, 598 J. Physiology 4997, 5133 (2020) (finding that dehydration doesn’t reduce heat loss in older adults to the same extent as their younger counterparts, leading to greater fluid loss)).
61
Sixth Dist. of the Afr. Methodist Episcopal Church v. Kemp (In re Ga. Senate Bill 202), No. 21-mi-55555, 2023 U.S. Dist. LEXIS 144919, at *67 (N.D. Ga. Aug. 18, 2023).
62
See infra note 69 and accompanying text.
63
See, e.g., Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001).
64
Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1329 (N.D. Ga. 2017) (citing Ganstine v. Sec’y, 502 F. App’x 905 (11th Cir. 2012)).
65
See Shotz, 256 F.3d at 1080 (“A violation of Title II, however, does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity.”).
66
Id. (discussing a courthouse’s accessibility to an individual in a wheelchair).
67
See, e.g., supra notes 57–60 and accompanying text.
68
815 F. App’x 505 (11th Cir. 2020).
69
Id. at 515.
70
752 F.3d 189 (2d Cir. 2014).
71
Id. at 199–200.
72
Id. at 198.
73
See id. at 198–99.
74
See id. at 200.
75
28 C.F.R. § 35.150(a) (2024).
76
League of Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905, 936 (11th Cir. 2023).
77
Id. (“The length of a line at a given polling location at 3:00 p.m., for example, tells us nothing about the line voters face at 6:00 p.m. . . . We do not know whether black voters are more likely to vote at those polling places when the lines are long or short.”).
78
See Tennessee v. Lane, 541 U.S. 509, 532 (2004) (listing the “relocat[ion of] services to alternative, accessible sites” as a method of Title II compliance); Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (“[I]f one facility is inaccessible, a public entity may comply with Title II by making its [services] available at another facility.”).
79
See League of Women Voters, 66 F.4th at 936–37.
80
See Shotz, 256 F.3d at 1080.
81
See Westchester Disabled on the Move, Inc. v. Cnty. of Westchester, 346 F. Supp. 2d 473, 477 (S.D.N.Y. 2004).
82
Id.
83
See League of Women Voters, 66 F.4th at 918 (discussing plaintiffs’ challenges to Florida’s provisions regulating ballot drop boxes and third-party delivery of voter registration forms, which were brought alongside the challenges to the line-warming ban); First Amended Complaint, supra note 6, at 126 (discussing the “burdensome requirements to apply for and submit an absentee ballot” that S.B. 202 imposes on Georgia voters).
84
See League of Women Voters, 66 F.4th at 919 (highlighting the recent expansion of the state’s absentee voting program).
85
See id. at 925–27 (citing the state legislature’s fraud concerns as legitimate reasons for the restrictions).
86
See People First of Ala. v. Sec’y of State for Ala., 815 F. App’x 505, 515 (11th Cir. 2020).
87
See id. at 513.
88
Id. at 508.
89
See id. at 513 (“‘Combatting voter fraud’ is certainly a legitimate interest.”).
90
See id. at 511.
91
346 F. Supp. 2d 473 (S.D.N.Y. 2004).
92
Id. at 477.
93
See id. at 478.
94
Id.
95
See People First, 815 F. App’x at 515.
96
Id.
97
Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th Cir. 2020); see also 28 C.F.R. § 35.130(b)(7) (2024).
98
League of Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 929 (11th Cir. 2023) (describing the intent of the anti-solicitation provision as preventing voter influence).
99
Id. at 947.
100
See Ashley Eisenmenger, Five Things You Didn’t Know About Invisible Disabilities, Access Living (Sept. 14, 2020), https://www.accessliving.org/newsroom/blog/five-things-you-didnt-know-about-invisible-disabilities/#:~:text=Invisible%20disabilities%20are%20common&text=According%20to%20the%20CDC%2C%2061,of%20those%20are%20invisible%20disabilities [https://perma.cc/M4UY-7G7R] (reporting at least one in ten disabilities are “invisible disabilities” that cannot be discerned just from looking at the individual).
101
See People First, 815 F. App’x at 515 (internal quotations omitted).
102
Id.

Uncategorized

The Burden to Reach the Ballots: Tackling Eleventh Circuit Line-Warming Bans and Their Intersectional Harm Under an ADA Framework

Introduction

I. Line-Warming Bans: The Newest Obstacles to Voting Rights

II. Avenues For Challenging Line-Warming Bans In The Eleventh Circuit

III. Challenging Line-Warming Bans Under the ADA

A. Making a Prima Facie Case Against Line-Warming Bans Under Title II of the ADA

B. State Defenses Against a Prima Facie Case Are Likely to Fail

1. Inconvenience Does Not Constitute Meaningful Access Under the ADA

2. States Do Not Have Meaningful Alternatives or Accommodations for Disabled Voters

C. Establishing a Modification to the Line-Warming Ban

Conclusion

References:

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