Will California Legalize 'Ballot Selfies'?

One state assemblyman will introduce legislation to legalize the taking of “ballot selfies,” and describes his actions as trying to spur civic participation as voting rates reach all-time lows.

by Richard Halstead, The Marin Independent Journal, Novato, Calif. / November 3, 2015

(TNS) -- Assemblyman Marc Levine is proposing turning the secret ballot into the social ballot in California.

On election eve, Levine, D-San Rafael, announced he will shortly introduce legislation to legalize the taking of “ballot selfies” — digital images of completed ballots taken in the privacy of the voting booth.

“I’ve been taking ballot selfies since I began taking my children to the polls with me,” Levine said. “I and many of my friends share our ballots on Facebook, Twitter and Instagram as we vote at home or are at a voting booth.”

Voters’ motivations for taking ballot selfies can vary, Levine said.

“It can be because they’re supporting a specific candidate, or it can be just to share the experience that they voted and that this is an important thing for Californians to do. It can be the social media version of the voting sticker, showing that you voted.”

Levine said when he discovered that California election code effectively prohibits ballot selfies and that some states around the nation were passing new laws to explicitly prohibit them, he became concerned.

“We see voter participation is at all-time lows,” he said. “We need to do everything we can to encourage civic participation.”

Marin County Registrar of Voters Lynda Roberts said she wasn’t sure if California law permits ballot selfies.

“That is something that I would have research,” Roberts said.

Several sections of California law, however, appear to prohibit such electoral unabashedness. For example, section 1491 of the Election Code states, “After the ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents.”

Other states

In 2014, New Hampshire passed a law banning ballot selfies and in July 2015 Indiana followed suit. The maximum penalty decreed for breaking the Indiana law was 30 months in prison and a $10,000 fine.

The American Civil Liberties Union sued on behalf of several individuals who challenged the New Hampshire law. One plaintiff flouted the law by posting his write-in vote for his recently deceased dog.

In August, a U.S. District Court judge in Concord ruled that the New Hampshire law was unconstitutional and last month a federal judge in Indiana did the same for the Indiana law. The judge in Concord ruled that the ballot selfie constitutes a form of political speech that may be restricted only by meeting the highest standard of constitutional scrutiny.

Some constitutional scholars have hailed the decisions. Several states — Maine, Oregon and Utah — have recently changed their laws to make ballot selfies legal.

Vote-selling concerns

But in an article posted on the Election Law Blog, Richard Hasen, an elections expert at the School of Law at the University of California at Irvine, lamented the striking down of the ballot selfie bans.

Hasen wrote that “without the ballot-selfie ban, we could see the re-emergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others.”

“This is a serious concern,” Levine said. But he said, “It is already illegal to be compensated for voting. It is already illegal to engage in voter intimidation or coercion, and my bill will also continue to prohibit that behavior.”

Levine said he plans to introduce the ballot selfie bill in January when the Legislature reconvenes.

“The ballot selfie is protected political speech,” Levine said in a statement. “Elections officials must demonstrate public harm through nefarious use of ballot selfies before denying voters their First Amendment rights. I encourage California voters to exercise their right to political speech.”

©2015 The Marin Independent Journal (Novato, Calif.) Distributed by Tribune Content Agency, LLC.

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