States revise laws to address ‘ballot selfies’ in voting booths

In response to the prevalence of cellphone use, several states have enacted legislation to address use of the devices in polling places, including voters taking and sharing photos of themselves with their marked ballots (“ballot selfies”). Legislative changes and recent court orders may cause more states to examine their laws governing behavior around voting booths.

Texas and many other states generally prohibit photography in polling places. Under Texas Election Code, sec. 61.014, a person may not use a wireless communication device or record images or sound within 100 feet of a voting station. The presiding judge may require violators to turn off the device or leave the polling place. In some states, such as Wisconsin, it is illegal to show one’s marked ballot to another person.

Recently, some states have moved explicitly to ban ballot selfies, while other states have considered or approved legislation that allows them.

State approaches to ballot selfies

New Hampshire and Indiana have enacted laws in recent years explicitly prohibiting voters from taking and sharing pictures of their ballots, although federal court orders barring enforcement of these laws on First Amendment grounds have led to uncertainty about the issue. Utah now allows voters to take pictures of their own ballots, and other states are considering similar legislation.

Banning ballot selfies. A 2014 New Hampshire law made it illegal for voters to take and share on social media or by other means digital photographs of their marked ballots. Each violation was punishable by a possible fine of up to $1,000. Three voters under investigation for posting ballot selfies on social media challenged the law on First Amendment grounds. New Hampshire’s secretary of state defended the law on the basis that it was needed to prevent vote buying and voter coercion, as compromised voters could use photos of marked ballots to show that they voted in a particular way. An August 2015 decision from a federal district judge invalidated the law.

The judge concluded the law was a content-based restriction on speech that could not survive strict scrutiny, the most rigorous standard of judicial review to determine a law’s constitutionality, because it did not serve compelling state interests and was not narrowly tailored to achieve those interests. The decision says the defense had not demonstrated that vote buying and voter coercion were actual or imminent problems in the state and argues the law was overinclusive, likely to punish mainly the innocent and not those participating in voter fraud schemes. New Hampshire has appealed the ruling.

Indiana enacted a law last year that banned distributing or sharing images of a voter’s ballot taken in a polling place using social media or by other means. In October, a federal district judge in Indiana granted a preliminary injunction halting enforcement of it. The judge in her order provided reasons for granting the injunction that were similar to those in the New Hampshire decision. A final ruling in the Indiana case has not yet been made.

Legalizing ballot selfies. In March 2015, Utah’s governor signed a bill that allows voters to take and share pictures of their own ballots. The Utah law also made it a class C misdemeanor (in Utah, punishable by up to 90 days in jail and/or a maximum fine of $750) if an individual takes a photograph of a ballot other than that person’s own ballot at a polling place.

Other states are considering legislation to allow voters to take and share images of their ballots, including one proposal in California and another in Nebraska.

According to an issue briefing from the National Association of Secretaries of State, there is not a clear consensus among states on what is permissible regarding ballot selfies and, until more legal clarity exists, states will need to clearly communicate their policies for 2016.

Debate on photographing ballots

Some say ballot selfies are an innocent and constitutionally protected form of communication used to show pride in civic participation and that allowing ballot selfies encourages youth engagement in the political process. They say many voters already unknowingly violate laws banning the taking and sharing of these photos and that other laws can be used to prosecute alleged voter fraud. Others express concerns that allowing photos of completed ballots to be taken and shared could lead to the re-emergence of bribery and coercive practices. They also say sharing one’s vote through the photos might compromise ballot secrecy and voter privacy.

Recent Texas proposals  

While Texas law prohibits using wireless communication devices and recording within 100 feet of voting stations, the 84th Legislature considered, but did not enact, a bill that would have authorized limited cellphone use in voting booths. HB 675 by G. Bonnen, which passed the House but did not receive a hearing in the Senate Committee on State Affairs, would have allowed the use of a mobile phone in a voting station to access information that was downloaded, recorded, or created on the phone before the person entered the polling place. The bill would not have changed the restrictions on recording images or sounds, although some raised concerns that permitting any cellphone use could allow for voters to be paid or coerced to take pictures of their marked ballots as proof of their vote or to photograph others and infringe on their privacy.

by Mary Beth Schaefer

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