More than 159 million people voted in the 2020 federal election and 2021 Senate runoffs, giving Democrats “trifecta” leadership of the White House, Senate, and House. Since then, Republican-controlled state legislatures around the country have teed up hundreds of bills aimed at making it harder to vote. Proponents of these bills assert that new restrictions on voting will restore public confidence in “election integrity.” But this claim is unsupported by any evidence of election-security breaches anywhere in the country sufficient to change the outcome of the 2020-21 elections in any State or the nation as a whole.

“Souls to the Polls”

One target of this current wave of voter-suppression bills is voting on Sundays before Election Day. For example, in Georgia, proposed legislation would have reduced or eliminated in-person Sunday voting. As voting-rights experts and others have noted (here and here, for example), the probable target of Sunday voting prohibitions is “Souls to the Polls” – the custom of Black churches to organize congregants to go collectively to the polls on Sundays, after services. (As noted here, get-out-the-vote activities have been practiced by churches in Black communities for at least 60 years. And attacks on Sunday voting also are not a new development; they’ve been going on for years, as shown in this report from the NAACP Legal Defense Fund.)

The legislation just enacted in Georgia did not ultimately prohibit Sunday voting. Although it survived this specific legislative assault in Georgia, Sunday voting might face prohibition again, in Georgia or elsewhere, as it has in the past.

Regardless, the new Georgia voting law prohibits and criminalizes another activity related to voting: “line-warming”—individuals or groups providing food, water, and blankets to voters standing in line while waiting to vote at their polling stations. As we write, Florida’s governor has just signed new legislation that also will restrict line-warming.

States also might prohibit other turnout-boosting practices. For example, States could prohibit individuals or groups from collecting mail-in ballots from voters for delivery to drop-boxes, mailboxes, or polling places—a practice that might become a felony in Texas under proposed amendments progressing through the Texas legislative process. (According to the Brennan Center, Florida’s legislation criminalizes any person possessing “two or more mail ballots other than the person’s own ballot and an immediate family member’s.”)

In addition to Souls to the Polls, these other turnout practices foreseeably could be undertaken by churches or church congregants, as expressions of their faith in the form of collective volunteerism and civic engagement. Promoting and protecting voting rights—as an instrumentality and expression of collective civic engagement to advance the welfare of the community—is similar in purpose and effect to churches’ organizing their congregants for neighborhood clean-up projects, or to provide meals and companionship to shut-ins, or to supply food, clothing, and shelter to needy members of the community.

A New Constitutional Argument

Because Sunday voting, line-warming, and other nonpartisan voter turnout tactics can be practiced by churches and other houses of worship, we suggest here a new constitutional argument anchored primarily in the First Amendment’s Free Exercise Clause to protect these activities. This argument could augment other constitutional and legal arguments litigants might use against restrictions on voting-related activities.

To frame our proposal, we first distinguish between voter-fraud measures and voter-deterrence measures. Of course, both fraud and deterrence measures can and do operate as voter-suppression tools, but our proposal focuses on voter-deterrence measures because, as we explain next, voter-deterrence is less legally defensible than anti-fraud measures. Because voter-deterrence measures are harder to justify legally than voter-fraud measures, we believe deterrence measures are ripe for challenge under the Free Exercise Clause.

In voting rights litigation, a court balances the constitutional interests of the State and voters by assessing the benefits and harms of challenged voting laws. The weaker the State’s justification for a voting restriction, the harder it becomes for courts to sustain the restriction.

Voter-fraud laws are premised on an assumption that persons ineligible to vote are faking their eligibility and illegally voting by, for example, procuring fake voter IDs for in-person voting, or stealing and forging mail-in ballots of eligible voters. Extensive empirical evidence from multiple studies demonstrates, however, that these species of voter fraud almost never happen.

Despite the lack of evidence of voter fraud, the voter-fraud assumption provides rhetorical cover to legislatures to enact laws such as those that:

  • require increased documentary proof of eligibility to register to vote,
  • shorten the list of documents and IDs acceptable for registering to vote or voting, or
  • require presentation of acceptable IDs at more and more steps of the voting process for in-person voting and voting-by-mail.

These kinds of voter-fraud measures impose burdens on all voters, but more so on low-income and rural voters and voters of color. At least superficially, however, these measures aim to guarantee the identity and, therefore, the eligibility, of voters. Voter-fraud measures, supported by voter-identification and eligibility arguments, consequently are more likely to survive judicial review.

By contrast, voter-deterrence measures are unrelated to voter-identity or voter-eligibility. For example, these include:

  • reducing the locations or hours of voter-registration facilities, thus making it less convenient to obtain legally sufficient voter-identification;
  • preventing college students from registering and voting where they attend school—where students usually reside during elections in the fall and spring—making it less likely that students will vote anywhere; and
  • reducing numbers and/or operating hours of polling places, making it harder for eligible voters to find times and dates convenient for them to cast their ballots.

These measures can suppress votes by making it harder to register and vote. (Both of us have worked numerous phone shifts for voter hotlines and have experience with voters struggling to determine if, where, when, and how they can register or vote.)

Such voter-suppression measures, however, can’t be grounded in “election integrity” arguments because they do not connect factually, or even logically, to determining voter-identity or eligibility. For example, a church group collectively commuting to vote or providing snacks and water to voters waiting in long lines at the polls has nothing to do with misrepresenting any voters’ eligibility to vote. Any voters engaging in, or supported by, such activities must still comply with whatever voter-ID laws are on the books in their States when they enter their polling places or fill out their mail-in ballots.

Religious Liberty Protection For Voters – and Voter Support

Our proposal to challenge, on religious-liberty grounds, voter-suppression measures disconnected from any anti-fraud justification is rooted in the Supreme Court’s religious liberty/free exercise cases. These include decisions that have considered whether laws generally applicable to the public, without any provisions specifically written to impair religious expression, still unconstitutionally burden such expression. (Our proposal focuses on voter-deterrence measures that do not on their face discriminate against persons who practice any identifiable religion.)

Our proposal also acknowledges recent diverging trends in religious liberty and voting rights cases at the Supreme Court. As the Court’s membership has changed over the past decade, it has become decreasingly protective of voting rights (demonstrated by its decision in Shelby County v. Holder and its disinterest in prohibiting partisan gerrymandering). Meanwhile, the Court has grown increasingly skeptical of governmental limitations on the free exercise of religion (as in the Hobby Lobby and Masterpiece Cakeshop cases). In fact, as detailed in this study, “[t]he Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953.”

Among the Court’s earlier free-exercise decisions is a line of cases showing the Court’s willingness to protect religious activity where buttressed by other First Amendment rights. For example, in Employment Division v. Smith (1990), the Court cited a 1940 decision to hold that a private business could fire employees for using controlled substances that were part of their religious practices.

Notably, the Court emphasized that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” (Emphasis added.) (We also note that the Court has not attempted to decide whether a purported religious activity satisfies any test of genuine “religiosity”; the Court has focused instead on whether a facially neutral law interferes with a presumptively religious practice.)

Turnout-boosting activities by churches seem to fit within this line of cases that protects religious liberty when paired with one or more other First Amendment activities. Pertinently, the First Amendment protects constitutional rights in addition to freedom of religion, speech, and the press: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis added.)

Collective voting-related activities by church congregants (for example, Souls to the Polls, line-warming, or collecting mail ballots for homebound congregants) can involve at least two First Amendment rights: the free exercise of religion and peaceable assembly. In a trial on a State’s prohibition of Sunday voting (or any collective caravanning to the polls by church congregants on any day), a minister might testify that her conception of her ministry and duty to her religious community includes encouraging her congregants to vote and encouraging them to travel together to the polls. Congregants might testify that they regard voting with other members of their congregation, after in-church services, as a further expression of their faith, perhaps even as integral to their participation in services. Similarly, ministers and congregants might testify that collectively providing water and snacks to persons standing in long lines for hours to vote, or collecting and delivering ballots for homebound voters, is an expression of their faith in the form of community service. (We are not aware of any litigants having raised this argument or relied on this kind of evidence in voting-rights litigation to date because these kinds of voter-turnout activities have not been targeted by legislation until recently.)

In a way, the Court has already anticipated our proposal by noting the linkage of Free Exercise, Free Speech, and Assembly rights. In the Smith case mentioned above, the Court made the practical observation that: “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Thus, collective religious expression in the voting-rights context—organizing Souls to the Polls, transporting congregants to the polls, collecting and delivering mail-in ballots, or providing water and food to voters waiting in lines to vote—appears to deserve judicial protection from unconstitutional attempts to obstruct it.

If our proposal becomes part of voting-rights litigation strategy, we will learn whether the Supreme Court will protect religious liberty when it serves to advance voting rights. If, however, the Court declines to protect this form of collective religious activity, it will reveal that, lamentably, the Court’s concern for religious liberty ends where it traverses the franchise, a cornerstone of our constitutional system.

Image: Voters enter a polling station at the Zion Baptist Church on January 5, 2021 in Marietta, Georgia. – After an unprecedented campaign that mobilized President Donald Trump and his successor Joe Biden, the people of Georgia started voting Tuesday in two US Senate runoffs that could shape the first years of the new Democratic presidency. For nearly 20 years Georgia has voted reliably Republican in the presidential election and Senate contests. (Photo by SANDY HUFFAKER / AFP) (Photo by SANDY HUFFAKER/AFP via Getty Images)