In ballot selfie battle, free speech beats fear of voter fraud

October 26, 2016

(Reuters) – Voting is democracy’s most fundamental right and responsibility and recent federal court rulings say you have a constitutional right to post photographs of yourself doing it.

More than a dozen states have laws on the books that bar voters from photographing their ballots or even showing their ballot to another person. In the era of camera-equipped smartphones and social media, states have interpreted those laws to prohibit ballot selfies. Some states have gone a step farther and actually passed laws barring voters from posting photos of themselves at their polling stations.

But in just the past four weeks, a federal appellate court in Boston and a federal trial judge in East Lansing have found laws prohibiting ballot selfies to violate the First Amendment’s protection of free speech.

Pop star Justin Timberlake turned ballot selfies into a sensation on Tuesday, when he posted a photo of himself casting an early ballot at a Memphis polling station on Instagram. Tennessee law bars voters from taking photographs inside polling stations, and the local district attorney’s office initially said it was reviewing the legality of Timberlake’s post before later clarifying that no probe was under way.

That was probably a smart decision by the county prosecutor considering the trouncing ballot-selfie bans have received in federal court.

Last month, the 1st U.S. Circuit Court of Appeals struck down a 2014 New Hampshire law that was enacted specifically to bar voters from photographing themselves in election booths. The case was brought by the American Civil Liberties Union on behalf of three New Hampshire voters who defied the law and posted ballot selfies.

One of those voters, Leon Rideout, is a Republican member of the state legislature who wanted to test the constitutionality of the selfie ban. Another was told he was under investigation for posting a picture of a ballot in which he wrote in the name of his dead dog, Akira, for a U.S. Senate seat.

The ACLU said the appellate ruling should apply to all state ballot-selfie bans in states within the 1st Circuit, including Massachusetts.

The group previously won a challenge to a 2015 Indiana law similar to New Hampshire’s statute. Courts in both the New Hampshire and Indiana cases held selfie bans were unconstitutional because the laws were not narrowly tailored and imposed unreasonable restrictions on voters’ right to express their political views.

Unlike Indiana and New Hampshire, Michigan barred ballot selfies through an old law, not a new one. Michigan’s election law has for decades prohibited voters from showing their ballots to anyone else. In recent years, the state official in charge of overseeing elections has instructed poll workers that the non-sharing provision precludes voters from using cameras, including cellphones, inside polling stations.

Michigan voter Joel Crookston sued in September to block enforcement of that rule, which he admitted he broke when he posted a ballot selfie in 2012, showing his write-in vote for an old college friend. On Monday, a federal judge in East Lansing agreed with Crookston that the Michigan rule likely violates the First Amendment. Michigan has appealed the decision to the 6th Circuit.

“You can’t bar a whole class of speech,” said Stephen Klein of the Pillar of Law Institute, who represents Crookston. Klein is also representing two voters in Colorado, a Republican state legislator and a first-time Democratic voter, in a newly filed suit challenging Colorado’s enforcement of a ban on ballot selfies. “This is a nonpartisan issue,” Klein said.

State officials defending ballot-selfie bans argue that allowing people to photograph completed ballots could facilitate schemes to buy or coerce votes. According to election law expert Richard Hasen, a professor at the University of California, Irvine, this concern dates back to the 1800s, when ballots were generally not secret. In those days, he said, vote-purchasers could be sure they got their money’s worth because they could see the ballots of those they paid to vote for a particular candidate.

Ballot selfies raise the same risk, said Hasen, who supports states’ rights to ban photographs of completed ballots. “People want to post ballot selfies for the best reasons, because they want to express excitement about voting,” he said. “But the issue is not as simple and ridiculous as it first seems.”

Judges who have deemed ballot selfie bans unconstitutional have held that the scant evidence state officials have offered on vote-buying or coercion schemes is not convincing enough to justify the prohibitions. In New Hampshire, for instance, only one state legislator offered any evidence of vote purchasing in the past 120 years of state election history – and that evidence was a third-hand anecdote.

The appellate court that struck down the New Hampshire law ruled that banning ballot selfies in the abstract and highly speculative interest of deterring vote-buying is like “burning down the house to roast the pig.”

“The prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons,” the court said. “New Hampshire does so in the name of trying to prevent a much smaller hypothetical pool of voters who, New Hampshire fears, may try to sell their votes. New Hampshire admits that no such vote-selling market has in fact emerged. And to the extent that the state hypothesizes this will make intimidation of some voters more likely, that is no reason to infringe on the rights of all voters.”

Election law expert Hasen said there is evidence in some jurisdictions that voters are paid or coerced to vote for particular candidates, but that such misconduct typically occurs with absentee or mail-in ballots.

First Amendment expert Eugene Volokh of UCLA School of Law, who filed a friend-of-the-court brief backing challengers to the New Hampshire ballot selfie ban, said states that allow absentee and mail-in votes despite evidence of abuse cannot turn around and prohibit ballot selfies for fear they will encourage the same sort of misconduct.

“That they allow absentee ballots says they think the risk isn’t that great,” Volokh said. “If the risk isn’t that great, it’s hard to see why to ban ballot selfies.”

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