The issue has reached courts and legislatures in many states, but there's no national consensus on the legality of taking a photo of a completed ballot and posting it on social media.
Freedom of speech covers more than just speech. First Amendment rights protect bumper stickers, campaign signs and other nonverbal forms of expression.
And now "ballot selfies," pictures taken by voters of their own marked ballots, might be the newest addition under the umbrella of the First Amendment in several states.
Last month, the American Civil Liberties Union (ACLU) of Indiana challenged election law prohibiting Indiana voters from taking photographs of their ballots while separately prohibiting them from sharing the images through social media or other means. This ban, the ACLU’s complaint said, violates voters’ fundamental constitutional rights to a form of expression. The state, the complaint says, can't justify the content-based regulation of speech in this case. Content-based regulation would require strict scrutiny, the highest standard used by U.S. courts to weigh government interest against infringement on constitutional rights.
The ACLU filed a motion for a preliminary injunction and requested a hearing on Sept. 4, but a date hasn't been set yet, according to Kelly Sharp of the ACLU of Indiana.
Every state has laws governing personal conduct in voting booths, according to Ethan Wilson, a policy associate at the Center for Ethics in Government at the National Conference of State Legislators. Some ban photography in the polling station, while others prohibit revealing a marked ballot. Such laws are meant to protect the secrecy of the ballot and therefore help prevent vote buying and voter coercion.
New Hampshire had a well-publicized case earlier this summer after it fined several voters $1,000 each for posting pictures of their ballots on social media despite the state's amendment prohibiting voters from doing so. The bill banning ballot selfies found support with representatives worried about voters' privacy.
When asked whether the bill was necessary, New Hampshire's Senior Deputy Secretary of State David Scanlan said that the “privacy of the ballot must be preserved.” He has previously talked about the history of voter buying and how it presented a real problem to elections.
In theory, photography makes vote buying easier because it allows the voter to capture an image of their ballot and proof of their voting behavior. And that proof can be used to prove to someone paying for the vote that the voter has cast their ballot in the desired way.
The judge disagreed.
While the state had compelling interest in preventing vote buying or voter coercion in the “abstract,” District Judge Paul Barbadora ruled that the state failed to provide proof that voter fraud presented a significant enough problem to warrant content-based regulation.
Other states have laws banning ballot selfies for reasons similar to New Hampshire.
The Frequently Asked Questions section of the Alabama Voting Guide for 2016 notes that while, yes, people can bring phones into polling places, they cannot take pictures. The guide states: “The U.S. Department of Justice has advised that photography or videotaping inside a polling place does not serve any useful purpose and may instead actually intimidate voters who are exercising their right to vote."
Alabama, California, Colorado and Massachusetts also ban ballot selfies. Wyoming attempted to pass a similar bill but failed.
But if laws governing conduct in polling stations have been in existence for many years, what changed to bring this issue to courtrooms and legislative hearings now?
What's different now is that states like Indiana and New Hampshire have attempted to clarify election law covering this subject. The amended wording included language explicitly banning “electronically retransmitting” on social media. It was this specific wording that made civil rights groups concerned, said Wilson.
“The interesting question," Wilson said, "is, will these groups be able to successfully challenge laws that regulate conduct in voting establishments but that do not specifically prohibit taking a picture of a ballot, i.e. a law that prohibits all photography?” he said in an email.
Prohibiting photography in the polling station wouldn't necessarily prohibit taking a picture and posting it to social media.
“If this is the case, we may see laws in many states begin to domino,” he continued. “This scenario is of course mere speculation at this point -- but time will tell.”
Some states are being proactive about the issue. Earlier this year, Utah and Arizona amended their constitutions to explicitly allow ballot selfies.
“States are going to have quite a bit to work out," said Wilson, "but I think they are going to try to get ahead of this.”
This article was originally published on Governing.