Board of Elections May Add Verbiage to Unconstitutional Ballot-Selfie Ban

You know that discussion we’re having about the wisdom of posting Bob Newland’s ballot (or anyone else’s) online? The Board of Elections appears to have read up to the part about Bob Newland but not the part about the First Amendment. Rather than acknowledging a recent federal court ruling that taking a “ballot selfie” is protected by the First Amendment, the Board of Elections discussed clarifying our “don’t show your ballot” law to make clear that you can’t Tweet your ballot.

In draft legislation discussed at yesterday’s meeting, the Board of Elections proposes adding four words to SDCL 12-18-27:

#14: 12-18-27. Marked ballot not to be shown–Folding for deposit in ballot box. No person may show to another or publicize a ballot after it is marked to any person in such a way as to reveal the contents of the ballot, or the name of any candidate for whom the person has marked a vote. Nor may any person solicit the voter to show the voter’s ballot. Immediately after marking the ballot the voter shall fold and refold the ballot, if necessary, leaving the official stamp exposed [Board of Elections, 2017 Proposed Statute Changes, 2016.10.13].

Bring that revision before me in the 2017 Senate, and I’ll take a conservative English teacher’s position: since those four words appear to add no meaning or force to the law, I will vote it down. “Show” encompasses the idea of “another”. To “publicize” is to “show”—i.e., to “make public.” I’ll await testimony on the intent of those four words, but I’m not seeing the need to add them to make clear the state’s intent… and I’m not seeing how those four words get us out of losing the lawsuit that Bob Newland will bring against the statute if A.G. Jackley tries taking away Bob’s liberty again.

Stay tuned—I’ll discuss bigger changes proposed by the Board of Elections in a subsequent post!

23 Responses to Board of Elections May Add Verbiage to Unconstitutional Ballot-Selfie Ban

    Meanwhile, here in the DUMB state – we’re number 3! We’re number 3!
    . . . in accidental shootings involving minors.
    Look at that list. The leading states are list of the dumb states where you do not want your children to live.

  2. Nick Nemec

    The photo of Newland’s ballot that I saw on Facebook clearly had “sample ballot” printed at the top. Did Newland publish a photo of his marked ballot or just a sample ballot marked how he intended to mark his official ballot? Is this a distinction without a difference or a loophole big enough to drive a RCP&E unit train full of corn through?

  3. Troy Jones

    FYI: The ruling in NH doesn’t apply here. We aren’t assured of losing in court. I have no position on it as I have two competing principles to reconcile after I have more information.

  4. Troy Jones

    Nick, my guess is showing your sample ballot is not an issue as it isn’t official. Ne could do that to “fool” the vote buyer or intimidator.

  5. mike from iowa

    We aren’t assured of losing in court. I have no position on it – HUH?

    The dominoes is falling, Troy. First the East Coast. Then the Left Coast and then Jackley gets to lose more taxpayer bucks trying to stem the runaway tide of bringing America into the 21st century.

    What possible harm can showing your filled out ballot do to anyone?

  6. Troy, the NH ruling doesn’t negate our law, but the conditions are identical: South Dakota bans ballot selfies but presents no evidence supporting a compelling state interest in infringing on this First Amendment activity. SD will lose a challenge to this law as surely as NH did.

  7. Nick! Good point! SDCL 12-18-27 does not cover Bob’s sample ballot, only his real one. Bob, time to civilly disobey!

  8. Uh-oh! How are the GOP Party ballot police going to enforce that against people who get absentee ballots? Those are the ones with the most opportunity to show their ballots. This is an unenforceable law.

    Heck, couples who get absentee ballots together sit there at the kitchen table and fill them out together. They are criminals? Nonsense! Repeal the law when you get to Pierre, Cory.

  9. MFI,

    I don’t have a position on it. I have an inclination to the free speech argument as well as giving protection to the secret ballot, against voter intimidation, and vote buying (the latter is the rationale for the law). I just don’t have enough information to evaluate the merits relative to the other.


    I’ve only read what you excerpted from the NH ruling which seemed to center around insufficient evidence on voter intimidation or vote buying. Until the matter is litigated, we don’t know if this is a more real threat here or not. That is why I don’t think a decision either one is automatically assured.

    Also, I have absolutely no problem with Bob doing what he did with his sample ballot (which may be taken into the booth as a guide). Maybe the perfect compromise is to make it clear what he did is kosher while at the same time insuring vulnerable voters have some protection against voter intimidation and vote buying.

  10. Is there a law against taking pictures inside polling places? I think that is appropriate given that everybody has cell phones with cameras. I can see how that might be intimidating or just plain offensive to many.

  11. Ror,

    I think there is such a law.

    Since you are an attorney, confirm this legal opinion I just got in the bathroom of my office building when I asked why the burden (prohibition to show vs. against the person who wants to see for nefarious reasons).

    A duress or illegal coercion to commit a crime is a defense against conviction and the consequences transfer to the person doing the duress or coercion.

    correct or incorrect?

  12. Ror, I think SDCL 12-18-3 covers that in saying that, among other unacceptable voting site behavior, we cannot “use any communication or photographic device in a manner which repeatedly distracts, interrupts, or intimidates any voter or election worker….

    But notice that word “repeatedly”. If I walk into the polls, take one picture, and leave, this statute appears not to apply. Likewise, if I take a picture of my ballot and me in the privacy of the voting booth, where my action doesn’t distract or interrupt anyone else (turn off the little camera shoot-noise!), this statute appears not to nab me.

  13. mike from iowa

    Forgive me for living, Troy, but, “We aren’t assured of losing in court.” sounds like a position to me.

  14. Bill Fleming

    I think the perhaps reason for rule (if perhaps not the language) has to do with banning political activity inside the polling place. I support the law that says there shouldn’t be, and if Bob’s intent was to be doing political activity from inside the polling place, shame on him. I’m willing to bet he wouldn’t want anyone inside the polling place trying to influence his vote. What say you, Bob?

  15. mike from iowa

    Welcome back, Bill Fleming- I think.

  16. Now we know Troy gets his legal advice from the oracle in the bathroom.

  17. Bill Fleming (!), I don’t think I’ve heard that intent given for the law. Intent seems to rest mostly on the concerns Troy raises about voter bribery or intimidation.

    Sure, I would agree that a rule against filling out your ballot, then waving it around and shouting, “Look who I voted for, everyone!” in the polling place before dropping the ballot into the lockbox is unacceptable electioneering activity.

    But now you get me thinking of a parallel to behavior in at the Capitol. I can’t sit in the gallery and shout at House members during their speeches. A Senator can’t make loud comments from her desk while another member has the floor. However, we haven’t resolved the politeness of engaging with people outside of the Capitol via social media. I’ve Tweeted (as have other journalists and observers) from the gallery during House and Senate debates and from committee rooms during testimony and discussion. I believe some legislators have tweeted from the floor while in session. Does such electronic interaction with people not in the room do any harm?

    Ah, here’s a wrinkle that comes to mind: suppose ballot selfies became a norm, practiced by everyone with a phone. By 7 p.m. Central, we’d have a huge body of documented votes showing which way a good chunk of the Electoral College is going. Would we need to ban publication of such documentary evidence to prevent swaying (or, more likely, depressing) the vote in the Mountain, Pacific, Alaska, Hawaii, and Samoa time zones?

  18. Bill Fleming

    Now you’re smellin’ what I’m steppin’ in Cory. Technologically speaking, there’s less and less “here” and “there” these days. If we want there to maintain those spaces, we have to consciously create them by agreement. :-)

  19. Bill Fleming

    If we want to maintain those spaces…

  20. Bingo! Our new abilities to communicate—to broadcast!—change the meaning of location, and we have to watch for that in the law.

  21. David Bergan

    When all ballots are secret, isn’t it easier to rig an election? I mean paper ballots with Yea could be replaced with paper ballots with Nay, and no one has an audit trail to prove which are the real ballots.

    For some reason, it seems like recounts hardly ever total to the same number as the original count, which leaves me suspicious that this might be happening between counts. (More votes for Gore each time they counted Florida.)

    Any number of public ballots hedges against that form of corruption. If all ballots were public, there’d be no recounts. Just like there is no need for recounts in the legislature, where the reps publically put their votes on the big Daktronics board.

    Kind regards,

  22. Cory, in the words of Winston Churchill (somewhat edited):

    “This is something up with which I do not care.”

  23. Curious, David: does any nation use public votes?

    If recounts don’t match original counts, I will sooner ascribe it to statistical error rather than monkeyshines. Papers stick together. Mistakes happen. The decentralized counting of paper ballots makes it hard for anyone to organize an effective statewide or nationwide ballot-replacement scheme.