“It’s been used as a workaround to get around that law. And the irony of this, as we looked it up, this is actually the law in the president’s home state of Delaware right now. So this is not some new thing that’s been brought out. This is pretty standard across the country.”

— Gabriel Sterling, chief operating officer of the Georgia secretary of state’s office, in an interview with the PBS NewsHour, March 26

A reader queried us about this statement, in the wake of Georgia’s governor signing into law changes to election procedures that quickly earned condemnation from President Biden. “It makes it a crime to provide water to voters while they wait in line,” the president said in a statement.

But Sterling argued that the provision was “actually the law” in Biden’s home state of Delaware.

Is that the case?

The Facts

Long lines have often been experienced during Georgia’s elections, especially in majority-Black districts. Food and water would be distributed while people stood in line. The new Georgia law makes that illegal if such assistance occurs within 150 feet of the building where voting is taking place.

Here’s the language:

“No person shall solicit votes in any manner or by any means or method, nor shall any person distribute or display any campaign material, nor shall any person 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, nor shall any person solicit signatures for any petition, nor shall any person, other than election officials discharging their duties, establish or set up any tables or booths on any day in which ballots are being cast: (1) Within 150 feet of the outer edge of any building within which a polling place is established; (2) Within any polling place; or within 25 feet of any voter standing in line to vote at any polling place.”

The law added, however, that poll workers were not prohibited from “making available self-service water from an unattended receptacle to an elector waiting in line to vote.”

When we first looked up Delaware’s election code, the only possibly relevant section we saw had to do with bribery. We did not see any specific reference to water or food. Here’s that section, 3167:

“Whoever, either in or out of this State, receives or accepts, or offers to receive or accept, or pays, transfers or delivers, or offers, or promises to pay, transfer or deliver, or contributes or offers, or promises to contribute to another to be paid or used, any money, or other valuable thing as a compensation, inducement or reward for the giving or withholding or in any manner influencing the giving or withholding a vote at any primary election held for the purpose of selecting delegates or representatives to any political convention thereafter to be held for the purpose of selecting candidates for public office or for the purpose of selecting delegates to a national political convention thereafter to be held for the purpose of nominating candidates for the office of President and Vice President of the United States, shall be fined not less than $100 nor more than $5,000 or imprisoned not less than 1 month nor more than 3 years, or both.”

When we called Sterling asking for an explanation, he sent The Fact Checker text messages making the case that Delaware’s Section 3167 is similar to the Georgia law.

“It’s really just about giving or receiving anything of value in return for voting, which was already illegal in Georgia, too,” he said. “The problem with food and drink is that we got a lot of complaints it was being treated as an end around of that law and campaigning in a polling place. Even if it wasn’t being used that way (and it sometimes was) it was giving off the impression to others at the polls that the food/drink was in return for voting.”

Sterling said officials believed they “needed to draw a bright line,” adding: “This giving of food and water wasn’t just that. People were bringing food trucks to come out and vote.” He noted that volunteers “can still set up tables with water or snacks. They can donate them to counties for workers to distribute.”

Sterling said the state has previously cited people “for doing giveaways for ‘I voted stickers’ and also ‘a raffle for a turkey.’ ” He also argued that the problem of lines has been addressed with apps that track waiting times so voters can “better manage them in the 16 days of early voting.”

But Delaware’s law is not nearly as specific as other state laws. There is certainly no mention of food or water as a possible bribe. (We should also note that Delaware prohibits electioneering within 50 feet of the voting facility, compared to 150 feet in Georgia.)

For instance, Montana mentions food and drink distributed by supporters of candidates. “On election day, a candidate, a family member of a candidate, or a worker or volunteer for the candidate’s campaign may not distribute alcohol, tobacco, food, drink, or anything of value to a voter within a polling place or a building in which an election is being held or within 100 feet of an entrance to the building in which the polling place is located,” Montana’s code says.

New York’s election code also mentions a prohibition on distributing food and drink — unless it is of little value and no candidate is identified with supplying the food: “Except any such meat, drink, tobacco, refreshment or provision having a retail value of less than one dollar, which is given or provided to any person in a polling place without any identification of the person or entity supplying such provisions.”

Several election experts said the new Georgia provision was overkill.

“Giving of food or drink to all people around a voting line (and not just voters) is legal in federal elections unless a state law provides otherwise,” said Richard L. Hasen, professor of law and political science at the University of California at Irvine. “These anti-bribery statutes are not typically construed to stop the provision of food and water to those around the polls.”

He noted that “Georgia already had a ban on electioneering around the polls and if that’s what this was really about they could have written something narrower, such as something that prevents the mention of candidates on any food or water being handed to voters.”

David J. Becker, executive director of the Center for Election Innovation and Research, also said the new Georgia law was unusual.

“While there are prohibitions on ‘vote-buying’ at both the federal and state levels, I don’t know of any prosecutions for providing food or beverage to voters who are already waiting in line to vote, or any rulings that consider provision of food or beverage to those already waiting in line to vote as any kind of ‘inducement,’ ” Becker said. “In fact, free rides to the polling places are not considered an inducement or a thing of value under the law, and those receiving rides aren’t already waiting in line to vote at the polls, by definition.”

The Pinocchio Test

States prohibit bribery at the polls — the offer of something valuable in exchange for votes. There are certainly some states that Sterling could point to as providing a basis for Georgia’s decision to prohibit providing water and food within a designated area of an election facility. But Delaware is not among them.

Delaware has a prohibition against giving “any money, or other valuable thing as a compensation, inducement or reward for the giving or withholding or in any manner influencing the giving or withholding a vote.” That’s standard anti-bribery language, similar to Georgia’s previous law. In theory, that could be food or water provided by candidate X, but that is not the same as Georgia’s new law. Georgia specifically prohibits that — unless the food or drink is first provided to election officials for general distribution to the public.

In fact, compare Montana’s language with Georgia’s language. Montana specifically ties the giving of food and water in exchange for votes. Georgia’s language is much vaguer, suggesting the prohibition of any food or drink within 150 feet of an election facility.

Meanwhile, Delaware makes no mention of food or water — just “compensation, inducement or reward.” Perhaps that could be interpreted as food or water. But that’s not the same law.

As a clever talking point, this jab falls short. Sterling said Georgia wanted to draw a “bright line,” but he can’t argue that Delaware’s line is just as bright. Sterling earns Two Pinocchios.

Two Pinocchios

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