Ballot Selfies and the First Amendment

By Kim Plemel, CLS’18

The 2016 United States election saw the increased prevalence of so-called “ballot selfies” and a corresponding dialogue concerning the legitimacy of laws prohibiting the taking of such photos. In the run-up to the election, eighteen states had statutes on the books disallowing ballot selfies.[1] These prohibitions against photos taken in the voting booth were challenged in court in several states including Colorado, Michigan, New York, New Hampshire, and California.[2] In some of these states, litigation has extended past Election Day, and how the courts resolve the issue will have long-lasting implications for how First Amendment rights are vindicated in the face of efforts to prevent corruption in American elections.

Ballot Selfie Laws in the Courts

Some decisions leading up to the election depended on procedural matters. For example, the Sixth Circuit addressed a challenge to a Michigan statute “forbidding voters from exposing their marked ballots to others.” [3] On the basis that the plaintiff had not raised the issue in a timely manner, that court stayed a preliminary injunction against enforcing the law that had been granted by the United States District Court for the Western District of Michigan. After the election, the Sixth Circuit reversed the preliminary injunction in light of the fact that the merits of the First Amendment claim were being considered in the district court, and that litigation is ongoing.[4]

When addressed on the merits, the principal interest asserted by the state in these cases has been one of preventing vote buying: being able to take a photo of a completed ballot allows parties to provide proof of the vote they cast, making exchanging that vote choice for something of value, including monetary payment, feasible. However, statutes prohibiting voters from taking and distributing photos of their completed ballots may be subject to strict scrutiny by the courts because they have been deemed content-based restrictions. After concluding that the correct standard was strict scrutiny, a federal court in Indiana found that the challenged statute was not narrowly tailored to address the state’s interests.[5] The United States District Court for the Southern District of New York, on the other hand, denied a preliminary injunction against enforcement of the New York statute, suggesting that “polling places are generally not considered to be public fora […] and therefore any regulation of speech at a polling place is evaluated only under a reasonableness standard.”[6] These few cases on the issue suggest there is ambiguity in the law that warrants clarification by a higher court.

New Hampshire’s Petition for Cert

A federal appeals court declared New Hampshire’s statute invalid as a violation of voters’ First Amendment rights on September 28, 2016.[7] However, the state has filed a petition to the Supreme Court of the United States for a writ of certiorari.[8] It is important that the Supreme Court grant cert in this case because it provides an opportunity to address the issue in a definitive manner well in advance of the next major elections. This will mitigate uncertainty across the country about whether or not taking a photo of a completed ballot is permissible, and if the Supreme Court comes down on the side of First Amendment protection there will be much-needed uniformity in this area. Because this issue has not been definitively resolved but is much less complex than, for instance, the constitutionality of voter identification laws, a Supreme Court ruling would go a long way in resolving the conflict in the decisions on the First Amendment right to photograph one’s ballot.

[1]Ballot Selfies: A look at where they are allowed or not, The Associated Press (Oct. 23, 2016) http://bigstory.ap.org/article/04c313da0672422ba28bb57c4e4a7ca0/ballot-selfies-look-where-they-are-allowed-or-not.

[2] Katie Rogers, Can You Take a Voting Selfie? States Wage Legal Battles Days Before Election, The New York Times (Nov. 2, 2016) http://www.nytimes.com/2016/11/03/us/politics/voting-selfie.html.

[3] Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016).

[4] Crookston v. Johnson, 2016 WL 7383999 (6th Cir. 2016).

[5] See Indiana Civil Liberties Union Foundation. Inc. v. Indiana Secretary of State, 2017 WL 264538 (United States District Court, S.D. Indiana, Indianapolis Division 2017).

[6] Silberberg v. Board of Elections of the State of New York, 2016 WL 6537691 (S.D.N.Y. 2016).

[7] Rideout v. Gardner, 123 F.Supp.3d 218 (D.N.H. 2015).

[8] Rideout v. Gardner, 838 F.3d 65 (2016), petition for cert. filed (U.S. Aug. 11, 2015) http://www.scotusblog.com/wp-content/uploads/2017/01/16-828-cert-petition.pdf.