Taking a picture of your ballot at the polls is fun and patriotic but illegal in South Dakota.
Judge Paul Barbadoro of the U.S. District Court of New Hampshire ruled Tuesday that banning such “ballot selfies” is unconstitutional:
A U.S. District Court judge on Tuesday struck down the state law banning “ballot selfies,” calling the prohibition “a content-based restriction on speech that cannot survive strict scrutiny.”
…The ruling by Judge Paul Barbadoro is a victory for the American Civil Liberties Union of New Hampshire, which brought the lawsuit on behalf of three voters who posted images of their completed ballots on social media sites after the Sept. 9 primary [Dave Solomon, “Judge Strikes Down NH ‘Ballot Selfie’ Ban,” New Hampshire Union-Leader, 2015.08.11].
The state can restrict First Amendment rights (remember, you can’t walk into the polls and “electioneer”—i.e., shout slogans or hand out flyers for your favorite candidate), but only if it can demonstrate a compelling interest in such restriction:
…In striking down the law, Barbadoro ruled that the state had failed to demonstrate any compelling interest in preventing people from showing others how they voted via social media.
“The Secretary of State … produced no evidence that either vote-buying or voter coercion are current problems in New Hampshire,” he wrote. “The Secretary (of State) has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote-buying or voter coercion” [Solomon, 2015.08.11].
The South Dakota statute that prohibits showing your marked ballot to anyone (SDCL 12-18-27) does not explicitly mention Tweeting your ballot. The New Hampshire ruling struck down a 2014 amendment to that state’s no-show-ballot law that prohibited a voter from “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.” A U.S. District Court ruling in New Hampshire does not overturn South Dakota law, but this ruling suggests that South Dakota cannot ban our proud display of our ballots to our Facebook friends.
The way I have understood the SoDak law was to prevent voter intimidation or vote buying. I’m your boss and I say take the afternoon and go vote, and send me a picture of your marked ballot while you’re at it. Then I might discriminate against you based on the way you voted. Or, hey, I’ll give you 20 bucks to vote for Candidate A, but you need to send me a picture of the marked ballot to prove you did it. That was the ‘compelling interest’ that I think the State of SD has used to justify limiting speech.
I do not know that this will travel much beyond the district where it happened. The idea that it is content-based is, at best, a stretch. There is nothing that prohibits the voter from posting an “I voted” selfie (dropping the ballot in the box) or stating that he/she voted for Heidelberger.
The article quotes the ACLU as saying that “this message loses its salience without the photograph of the marked ballot.” But this fundamentally contradicts the idea that the law is content-based. It is, at its core, a “time, place and manner” restriction, which is rationally related to the goal of the statute.
Mark a sample ballot and take a picture of it. I am not sure SD needs the prohibition, but I also don’t see it as any real restriction of speech or any other freedom.
Planning, that’s exactly what the NH law was based on, too, and the judge said the state failed to show any sign of such things happening.
Wiken offers an interesting alternative to support Vargo’s argument that we don’t need pictures of the actual ballot to sell that message. But may I suggest that the ballot itself, that usually private act now publishable, adds a unique salience to that message?
“Salience” relates to the manner of communication, which means that it is not content-based and the strict scrutiny rules do not apply. It appears on first reading that this is where the judge and I disagree, but I find his dismissal of the dangers to be narrowly focused on systemic fraud, vote-buying, etc. Isn’t the secret ballot designed to protect against even peer pressure, which could include peer pressure to post?
I don’t understand the whole “selfie culture.” I suppose it is a First Amendment right to demonstrate your narcissism by taking photos of oneself every three seconds and plastering them across social media. I find it boring and dumb. I also don’t care to see your ballot, filled out or otherwise. Some things, like pictures of penises and ballots, are best left not shared with the public. But dumb people, I suppose, will post their pics of private parts and private ballots.
Remind me not to misuse words with a lawyer around. :-) Mark, help me out: the law bans the publication of images of a specific piece of paper, the ballot. Under the law in question, I can tweet pics of my face, my driver’s license, or a copy of War and Peace from the polling booth. I could whip out my phone and dash off a brief blog post from the polling booth. Wasn’t the New Hampshire law restricting some very specific content?
The peer pressure argument is interesting, but it seems backwards. We all know we have a right to a secret ballot. Some people choose to make no secret of whom they vote for. The judge appears to agree with me that there’s no evidence people are posting their ballot photos to answer to pressure, whether from fraudsters or aggressively snoopy peers. These ballot-tweeters are doing it out of pride, passion for their candidate/position, or just plain tech-enhanced narcissism, as Donald observes. People can choose to surrender their right to a secret ballot, just as they can choose not to exercise their right to vote. Even if surrendering your right to a secret ballot is selfish or silly, it’s still First Amendment expression, and the burden does not fall on citizens to prove the merits of their speech; the burden falls on the state to prove a compelling interesting in restricting it.
I will posit one merit of that speech that citizens could cite if they had a burden of proof: doesn’t taking pictures of our ballots allow us to document our vote and challenge election results that we think the election machines have gotten wrong? Isn’t there at least as much chance that such documentation could do more to check election fraud than support vote-buying?
I like your last argument Cory. It could be a tool against Diebold’s Republican voting machines.
What deb said. It would be easy post the voters results through an app. Diebold sleeps with big money.