Why Starbucks can't use free coffee to help get out the vote.

Answers to your questions about the news.
Nov. 4 2008 6:25 PM

Is Free Coffee Against the Law?

Yes, if it's in exchange for your vote.

Illustration by Rober Neubecker.

Starbucks announced Saturday that stores would be offering a free "tall" coffee to anyone who voted today; Krispy Kreme promised a doughnut with red, white, and blue sprinkles. USA Today compiled a cheat sheet keeping track of other swag offers on Election Day, including chicken, beer, and sex toys. Wait a second, isn't this voter bribery illegal?

Yes, though it probably wouldn't be prosecuted. Federal law states it's a crime to offer, solicit, or accept any "expenditure to any person, either to vote or withhold his vote." Those who violate the rule are subject to imprisonment for up to one year, a fine, or both. (At least three of the companies offering Election Day giveaways—Starbucks, Krispy Kreme, and Ben & Jerry's—have since changed their offers. Now they're offering free stuff to everyone, not just people who claim to have voted.)

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Although rewarding people for turnout has been against federal law since 1948, voter-bribery cases have been pursued much more seriously since the Voting Rights Act of 1965. That bill, intended to eliminate discriminatory practices that were occurring on a state level, resulted in more federal voting oversight and signaled that any sort of election tampering would be taken seriously. By the late 1970s, authorities had begun to crack down on the practice of giving out "walking-around money" to prospective voters on Election Day. (Today, political parties are generally permitted to distribute cash and other goodies but only to their campaign volunteers—not directly to the voters.)

But the government can't possibly prosecute every single minor "inducement" for voters. Likewise, the corporate giveaways announced in recent days are extremely unlikely to draw serious investigation. Although the chains offering freebies are clearly in violation of the law, the civil rights division of the Department of Justice isn't likely to devote the time and money required to bring a suit against major corporations for a fairly benign infraction. The feds might be more inclined to pursue a case if the companies were targeting their offers to specific areas—say, free Starbucks for people who voted in heavily Democratic San Francisco. In that case, the promotion might be seen as a direct attempt to lure more Democrats to the polls. But since it appears certain that the companies were looking to grab publicity and possibly a tax write-off with the patriotic giveaways, they're getting off with a warning. A spokesman for the Washington secretary of state, whose office first informed Starbucks' corporate counsel that it was breaking the law, said the "friendly" warning was intended to highlight the state's vigilance in preventing all kinds of voting irregularities this year.

The federal ban against voting quid pro quo only applies to national ballots. Many states have similar rules on the books, but some are a bit more lenient. In California, for example, it's perfectly legal to reward voters for showing up to the polls in a local election—but it's against the rules to buy a vote for a specific candidate. (In theory, Starbucks could hand out cups of coffee—or, indeed, wads of cash—to induce turnout among California voters as long as no federal candidates were on the ballot.) In 1999, California State Assembly candidate Elihu Harris and the state Democratic Party sent mailers to predominantly African-American neighborhoods offering a free chicken dinner for anyone who could prove that they voted. Even in this case, no charges were filed—on the grounds that the election was strictly local and that Harris wasn't demanding a vote for himself.

Got a question about today's news? Ask the Explainer.

Explainer thanks Sarah Cherry of OhioStateUniversity, Rick Hasen of LoyolaLawSchool in California, Nathaniel Persily of Columbia Law School, and David Stebenne of OhioStateUniversity.

Noreen Malone is a senior editor at New York magazine.

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