But first, let me take a ballot selfie!

Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.

Purported Risk of "Vote Buying" Schemes

Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote.   I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless).  Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.

Freedom of Speech (er... Freedom to Snap & Post)

Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168).  On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1^st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).

On Friday (October 28, 2016), the 6^th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8^th, the Michigan ban on ballot selfies would stand.  The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6^th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6^th Circuit concluded that “there will be time for due deliberation” after the election. 

Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.

Ballot Selfie Bans - A Constitutional Open Question

The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling.  A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey).  A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).  

At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.

Infographic from NBC News:

 

 

It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.  

Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law.   The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic.  “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2^nd.  On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.   

Outdated or Necessary Protections?

Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.” 

Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1^st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."  

I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way.  If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.