First, Let Me Take a Selfie

Author: Adam Pitchel, Associate Member, University of Cincinnati Law Review

Recent events have indicated that the electoral process remains a vital component of American government. Keeping this system free from intimidation, fear, and coercion is necessary to maintain its integrity. As part of this effort, several states have enacted legislation that prevents voters from taking pictures of their ballots after casting their votes.[1] These statutes are designed to preserve the sanctity of the electoral system by reducing the possibility of voter intimidation.[2] More persuasively, other proponents argue that this sort of legislation helps combat bribery or vote buying.[3] Opponents of these statutes argue that they impose an improper restriction of free speech and violate the First Amendment.[4] As part of this argument, they point out that incidents of voter intimidation and coercion have reduced substantially in the late 20th and early 21st centuries.[5] Furthermore, they argue that these statutes are largely ineffective in preventing voter intimidation because people who choose to take photos of their ballots often want to make their political opinion known.[6] Opponents of these statutes incorporate a more modern understanding of the First Amendment as it relates to the electoral process while proponents cling to an outdated rationale that has little bearing on the current issues of our time.

The Courts

The First Circuit recently dealt with this issue in Rideout v. Gardner.[7] In Rideout, the New Hampshire state legislature modified an existing statute to ban voters from photographing their marked ballots and publicizing the pictures.[8] Violations of this law were punishable by a fine of up to $1,000.[9] The plaintiffs challenged this law, arguing that it constituted a content-based restriction and violated the First Amendment.[10] The state argued that the law helped prevent “vote buying” schemes and keep voters free from undue influence or intimidation at the polls.[11] The court reasoned that the law failed to address an actual problem related to taking pictures of a marked ballot, thereby concluding that any restriction using that rationale is unreasonable.[12] It further argued that the state legislature could have tailored the law to focus on the problem that they were attempting to address, but failed to do so.[13]

The Sixth Circuit also considered the issue in Crookston v. Johnson.[14] In Crookston however, the court declined to rule the prohibition on ballot photography unconstitutional.[15] Instead, they overturned an injunction by the lower court that would have permitted ballot photography during the recent election and delayed the constitutional question until after the election concluded.[16] In the opinion, the court distinguished the case from Rideout, arguing that this case targeted a general ban on ballot-exposure and photography rather than “ballot-selfies.”[17] The New York Southern District Court agreed with the Sixth Circuit in Silberberg v. Board of Elections.[18] In Silberberg, the court believed that reversing the ballot photography law would interfere with the smooth functioning of the electoral process.[19] Also, it pointed out someone taking a ballot photo might accidentally capture someone else’s ballot that did not want their choice publicized.[20]

The Legislatures

Currently, thirty-one[21] states prohibit the practice of taking a picture of a marked ballot while inside a voting booth.[22] Some of these laws are recent, while others date back approximately 125 years.[23] The California state legislature has recently wrestled with this issue. Ballot photographs remain illegal in California polling places, however, a recent proposal would clarify the state law to permit the voluntary distribution of ballot pictures by the person who cast the vote.[24] The reasoning used by state legislators largely mirrors the logic of the First Circuit’s opinion in Rideout.

In contrast, the Georgia state legislature recently modified existing election laws to expressly prohibit the use of recording or photography devices in the voting booth.[25] The legislature makes no indication of the purpose behind this legislation, however it presumably reflects the purposes mentioned by the state in Rideout.

It is interesting to note that the states prohibiting ballot photography are scattered throughout the country, rather than being concentrated in a particular geographic area. In the other states, the legality of ballot photography remains unclear. For example, the Ohio legislature has yet to pass or discuss any statute to legalize or prohibit ballot photography.[26] For these states, it is likely that the issue will remain undecided until the next election cycle approaches.

The People

The presence of social media in the democratic process has fundamentally changed how the process functions.[27] People have the ability to make their political opinions known all over the world at any given time.[28] Exit polls are conducted immediately after people leave the voting booth, with various questions about political beliefs, important issues, and electoral choice.[29] These polls perform effectively the same function as a “ballot selfie” by announcing someone’s political choice to the public. Similar to the ballot selfie, these polls are conducted on a voluntary basis and do not coerce or intimidate voters. The primary differences between these types of polls and the ballot selfie are (1) the location of the speech and (2) the anonymity of the survey. Generally, exit polls are conducted outside of the polling area while ballot selfies necessarily occur inside the voting booth. Additionally, ballot selfies are typically displayed under the individuals screen name or real name while exit polls are conducted anonymously. However, both types of expression must fall under the category of “political speech”, one of the most constitutionally protected areas in First Amendment jurisprudence.[30]

Several Supreme Court opinions have pronounced the importance of political speech and protecting it from intrusions. In Citizens United v. FEC, the Court stated “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”[31] Here, it is unlikely that the legislators passed the law with the intention of abridging the freedom of speech. However, the law restricts the vehicle through which people can express their political opinions. This requires the state to prove that the restriction serves a substantial government interest.[32] In Silberberg, the Court found a legitimate interest in preventing voter intimidation and voter fraud.[33] It distinguished Rideout by finding that the statute was effective in reducing incidents of voter intimidation, consequently holding that the law should be upheld rather than overturned.[34] However, the court failed to acknowledge the substantial progress that states have made in preventing illicit voter activity over the past century.[35] For example, the Supreme Court determined that our society had evolved to the point where the Voting Rights Act[36] is no longer necessary to prevent voter intimidation and racial discrimination.[37] While the factual basis of this belief is debatable, the district court failed to acknowledge our progression as a society which may have affected its decision in Silberberg.[38]

States that have yet to face this issue at the judicial or legislative level will be faced with the difficult task of balancing First Amendment interests and the integrity of the electoral process. The most sensible approach would appear to be for each state to examine their own electoral history to determine if such legislation is necessary. Recent incidents of voter intimidation and vote buying in a particular state would be strong indicators that some sort of legislation in this area is necessary. However, each state has their own traditions and practices, consequently a statute crafted by one state may not be effective in another state. Regardless of whether or not states choose to ban ballot selfies, the presence of social media in the electoral process will not disappear in the near future. Consequently, legislators should at least clarify the position of the state on the issue so that citizens of the state can make an informed decision about the manner in which they express their political opinions.

Conclusion

States remain divided in the judicial and legislative branches over whether taking photos of marked ballots should be legalized. It presents complicated questions of political speech and voter intimidation at a time when social media increases the importance and the risk of both issues. Denying the impact of social media in the electoral process will only prevent state legislatures from addressing the issue before actual problems emerge. By accepting an increasingly common method of political expression, legislators can prevent future confusion and possible violations of the law. Furthermore, the United States already suffers from the lowest voter turnout in the world.[39] Limiting the sort of political expression that voters can engage in will only serve to further reduce the political involvement of the people. Ballot selfies appear to be a relatively harmless form of political expression and state legislatures should not impose they manner in which people express their political views.

[1] Nev. Rev. Stat. Ann. §293.730 (Lexis-Nexis 2016); S.C. Code Ann. §7-25-100 (2016).

[2] See Silberberg v. Board of Elections, No. 16-cv-8336, 2016 U.S. Dist. LEXIS 152784, at 1-22 (S.D.N.Y. Nov. 3, 2016).

[3] Id.

[4] See Rideout v. Gardner, No. 05-2021, 2016 U.S. App LEXIS 17622, at 2-21 (1st Cir. Sept. 28, 2016). Citizens United v. FEC, 558 U.S. 310 (2010).

[5] Id.

[6]Id.

[7]Rideout v. Gardner, No. 05-2021, 2016 U.S. App LEXIS 17622, at 2-21 (1st Cir. Sept. 28, 2016).

[8] Id.

[9] Id. at 2.

[10] Id. at 5-7.

[11] Rideout v. Gardner, No. 05-2021, 2016 U.S. App LEXIS 17622, at 8 (1st Cir. Sept. 28, 2016).

[12] Id. at 13-14.

[13] Id. at 18.

[14] Crookston v. Johnson, No. 16-2490, 2016 U.S. App LEXIS 19494, at 1-22 (6th Cir. Oct. 28, 2016).

[15] Id. at 3-4.

[16] Id. at 5.

[17] Crookston v. Johnson, No. 16-2490, 2016 U.S. App LEXIS 19494, at 10 (6th Cir. Oct. 28, 2016).

[18] Silberberg v. Board of Elections, No. 16-cv-8336, 2016 U.S. Dist. LEXIS 152784, at 1-22 (S.D.N.Y. Nov. 3, 2016).

[19] Silberberg, No. 16-cv-8336, 2016 U.S. Dist. LEXIS 152784 at 21-22.

[20] Id. at 22.

[21] Are Ballot Selfies Illegal? List of States Where Laws Allow You to Take Photos While Voting, INTERNATIONAL BUSINESS TIMES (November 7, 2016), http://www.ibtimes.com/are-ballot-selfies-illegal-list-states-where-laws-allow-you-take-photos-while-voting-2439599.

[22] Want to Take a Ballot Selife? Here’s Where it’s Legal, and Not, USA TODAY (November 7, 2016), http://www.usatoday.com/story/tech/news/2016/11/06/ballot-selfie-beware-s-often-illegal-despite-flurry-late-attempts-change/93299316/.

[23] N.C. Gen. Stat. Ann. §163-166.3 (2016); S.C. Code Ann. §7-25-100 (2016).

[24] Cal. Elec. Code § 14291 (Deering 2016).

[25] Ga. Code Ann. § 21-2-579 (2016).

[26] Want to Take a Ballot Selife? Here’s Where it’s Legal, and Not, USA TODAY (November 7, 2016), http://www.usatoday.com/story/tech/news/2016/11/06/ballot-selfie-beware-s-often-illegal-despite-flurry-late-attempts-change/93299316/.

[27] Social Media’s Increasing Role in the 2016 Presidential Election, NPR (November 7, 2016), http://www.npr.org/2016/11/07/500977344/social-media-s-role-increases-in-2016-presidential-election.

[28] Id.

[29] Id.

[30] Nixon v. Shrink Mo. Gov’t Pac, 528 U.S. 377, 410 (2000).

[31] Citizens United v. FEC, 558 U.S. 310, 340 (2010).

[32] Renton v. Playtime Theaters, 457 U.S. 41 (1986).

[33] Silberberg v. Board of Elections, No. 16-cv-8336, 2016 U.S. Dist. LEXIS 152784, at 1-22 (S.D.N.Y. Nov. 3, 2016).

[34] Silberberg, No. 16-cv-8336, 2016 U.S. Dist. LEXIS 152784 at 15.

[35] The African American Legacy and the Challenges of the 21st Century, U.S. DEPARTMENT OF THE INTERIOR https://www.doi.gov/pmb/eeo/AA-HM.

[36] 52 U.S.C.A. §10301.

[37] Shelby County v. Holder, 133 S. Ct. 2612 (2013).

[38] Silberberg, No. 16-cv-8336, 2016 U.S. Dist. LEXIS 152784.

[39] U.S. Voter Turnout Trails Most Developed Countries, PEW RESEARCH CENTER (August 2, 2016), http://www.pewresearch.org/fact-tank/2016/08/02/u-s-voter-turnout-trails-most-developed-countries/.

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