A Word in Defense of "Ballot Selfie" Laws

I appreciate Andrea's post below about so-called "ballot selfies" and laws restricting them, or more specifically restricting the sharing of photographs of completed ballots. She argues that ballot selfie bans are likely to be both ineffective and unconstitutional. Her arguments on the first point seem reasonable, and as a civil libertarian I am sympathetic to her second point. (Although I think that, despite significant domestication efforts by the courts, it still makes some sense to think of at least some elements of election law as being their own subject, with their own history and vagaries, and not as wholly a creature or subset of First Amendment law. For discussion and citations on the general topic, see, for example, this article by Heather Gerken.) So I am not disagreeing with her conclusion. But I would like to say a word, if not in defense of the bans or of a particular outcome, then in favor of the proposition that there are genuine concerns about photographing and sharing completed ballots: that they are not merely a matter of ancient history, but are of continuing relevance.

This requires some background about the University of Alabama and local Tuscaloosa politics. A problem of long standing here is the existence of "the Machine," an underground or secret society that in effect serves as a coalition and coordinator of some of the older (and, yes, extremely whiter) fraternities and sororities on campus. The Greek life is a big deal on campus here, although last time I checked the numbers it involves only about a third of the students here, and only some of those students belong to Machine houses. Simply because they are coordinated, however, the Machine and its member houses exert an outsized influence on on-campus life and politics. It is all too rare that "independent" candidates for student government leadership, including African-American candidates, can win against the Machine's chosen candidate, although it sometimes happens, including recently. Aside from general tendencies toward bloc voting, various forms of social coercion, and general dirty tricks, one of the ways the Machine enforces its choice of nominee among its members has been the insistence that members of Machine houses show how they voted. Various methods have been employed by the university to cut down on this. But the demand that member students demonstrate that they voted for the Machine candidate has been a major part of its dominance over campus politics. Reforms are ongoing, and they include making clear that no student or student group can demand to see how any individual student voted.  

Unsurprisingly, especially given the general low vote turnout in local elections, enterprising local politicians have realized they can leverage this vote, by attempting to convince the Machine to support some local municipal candidate and order its member students to do likewise. Turning to interest groups or affinity groups for political support is nothing new or unusual, or even wrong in itself--although one may condemn particular means of doing so, such as the use of "walking around money," the role of "politiqueras" in South Texas Democratic politics, and other methods, and one may feel still worse about any local politician attempting to win the support of a student group, like the Machine and the houses that belong to it, that has been complicit in decades of racial segregation. And the means of winning that support can be fairly innocent, like relying on common acquaintances and backgrounds or handing out campaign T-shirts; or they can be more insidious and corrupt, such as funneling money to the Machine and/or hiring Machine officials as "campaign workers," with the fairly clear if implicit bargain that the Machine rep will earn his or her money by pressuring all the members to vote for that candidate. 

I know a little something about this because my wife served (and served very well, by all accounts) on the Tuscaloosa City Board of Education, and was defeated for re-election in 2013. She lost because an ambitious local candidate for the chair of the board secured the Machine vote, and did so in part by running a former Machine member as her opposition in our voting district, which features a large student population, including many of the Machine houses. I won't relitigate the issue here--it was litigated, and she ultimately lost at trial, although that second link (to the word "litigated") suggests some of the reasons the loss was problematic, such as the widespread ignoring of subpoenas to testify, misconduct that the judge let go without penalty or pursuing the matter further, and local opinion was unhappy about the result. I will simply say that one of the allegations in the case was that the Machine had pushed its students--many of whom, it turned out, were not even properly resident in the voting district, but voted there because they were pushed into doing so--to vote for its selected or bargained-for candidates, and promised such things as wristbands for admission to election-night parties and concert tickets to its members who returned to their house and showed a designated representative their "I Voted" sticker. Under the circumstances, that's all it could really do, given the secrecy of the ballot. (Why the students didn't simply stand up to the Machine and refuse to vote if they were not properly resident in the district or did not feel comfortable or informed voting on local issues, or vote for whoever they pleased in defiance of their orders, is a mystery to me.) But if the Machine's coordinators could have demanded, or had thought to demand, that the students provide a photograph of their ballot, to demonstrate that they actually voted for the candidates they were ordered to vote for, I don't doubt they would have. (Update: I am told that some students in Machine houses were in fact urged or required to do just that, although I can't verify it definitively.)   

The conduct, or misconduct, that was involved in that election involved a classic suite of behaviors that are of long standing in American political history, such as the offering of things of value in exchange for votes and the funneling of money toward groups whose assigned role is to guarantee votes for a particular candidate. Some of that conduct is legal and some of it is illegal. But the general system of providing and safeguarding the integrity of elections by providing for voting by secret ballot was a response to the widespread nature of this conduct. It is very much a longstanding structural mechanism to ensure the integrity and legitimacy of the vote. Some of this history is noted in Rick Hasen's editorial arguing that ballot selfies are bad for democracy.   

One may disagree with Hasen's conclusion, and I have already indicated my ambivalence given the arguable First Amendment issues at stake--although, again, I note that one should not simply and mechanically apply general First Amendment law here without noting a long set of historical practices, structural mechanisms and concerns, and somewhat sui generis, functional or institutional analysis within election law. Nor am I making any arguments about the frequency or prevalence elsewhere of the kinds of schemes that were involved in the Machine's involvement in Tuscaloosa politics, that are likely to continue until the Machine is brought above-ground or dismantled, and that certainly will continue to figure in on-campus politics here. I will simply say that our experience here suggests that the conduct that gave rise to the system of ballot secrecy in American politics has certainly not disappeared entirely. Concerns about the potential value of photos showing one's actual completed ballot in effectuating and enforcing vote-buying schemes and other efforts to interfere with genuinely independent voting are far from "purported" and should carry ongoing weight.   

A few words about my university and community, since I live and work here and would like to see it do well, yet still saw fit to publicize its problems in this post. As the New York Times article linked to in the second paragraph suggests, the makeup and nature of the university has changed a lot in the last decade or two. A major part of that change has been the influx of out-of-state students, who--I hope--are finding ways to enjoy some of the university's customs and traditions (obviously, that's not a uniquely Southern or Alabama thing; most universities have them, although in the South they do love them some customs and traditions) while changing and improving them and discarding the ones that ought to be discarded, in part because they have no inherited stake in or from-the-cradle love of those traditions. Another important element of the change has come from Southern students themselves, many of whom are disgusted by some of the conduct and traditions they have seen and would like to see the student associations they belong to become genuinely racially diverse. When it is the students themselves who are so eagerly pushing for change, I do not want to perpetuate benighted assumptions about the South that are so widely popular among people who do not live here and would reject out of hand living here, instead righteously and conveniently choosing to live in a few select parts of the country where the structural mechanisms that ensure segregation and cocooning, by class if not by race (although the two are often closely linked), are so quiet, familiar, and taken for granted that they can convince themselves they are living justly and have no moral complicity in the problems with their own community. The story here, and the place itself, is more complicated than the still-conventional stereotype suggests. I would rather have people come to live here, whether as students, professionals, or academics, take advantage of all the good things it has to offer, and work to change and improve things, in part simply by being here and thus changing the culture, than living comfortably if semi-blindly in ostensibly problem-free enclaves elsewhere. And although the university as a whole has been too slow to push for change, and sometimes adults have reinforced the very systems the students have fought against, there are also many individuals and groups, on and off campus and including key members of the university faculty and administration, that have worked and continue to work to make the place what it often is and always ought to be. The Machine is an embarrassment to the university, and will be as long as it exists in its current form; and at least some of the local politicians who rely on the Machine for their votes are an embarrassment to the city. It has an outsized influence. But it is not the whole population of Tuscaloosa, which I love and where I have found a very supportive and decent community, nor is it the whole of the university itself. Still, as long as there are sorely needed changes, I'm quite willing to acknowledge and publicize them. I just wouldn't want it to be the one and only takeaway about my university and my community. All this is beside the main point, which is that there are reasons, not just "purported" reasons or rationales, to be concerned about ballot selfies. But I felt it needed saying.