A ballot selfie is a type of selfie that is intended to depict the photographer's completed ballot in an election, as a way of showing how the photographer cast their vote. Ballot selfies have risen in prominence alongside the increasing availability of smartphone digital cameras and the use of social media in the 21st century. They have also generated controversy as potential violations of laws enacted in the late 19th and early 20th centuries to curtail vote buying, particularly in the United States, although some U.S. courts have rejected restrictions on ballot selfies as inconsistent with the U.S. Constitution's First Amendment guarantees of freedom of speech.
Voters typically take and share ballot selfies to encourage others to vote, to demonstrate their civic involvement, and to express their choice of candidate. The selfie is often taken in or near a voting booth and the ballot paper is often marked. Others do not take pictures of themselves in the voting booth, but photograph their ballots (including Absentee ballot) or the voting machines, either before or after filling them out.
The American Civil Liberties Union and others have questioned the constitutionality of prohibiting ballot selfies, arguing that they violate the First Amendment's free speech guarantee. Others, such as election-law expert Richard L. Hasen, consider such statutes to be "narrowly tailored ... to prevent vote buying" and thus constitutional, and argue that "without the ballot-selfie ban, we could see the reemergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others." Supporters of ballot selfies, by contrast, argue that the taking and sharing of such photos is positive for democracy; for example, law professor Paul Bender has suggested that selfies might increase voter turnout.
In Tennessee, entertainer Justin Timberlake came under fire for a ballot selfie he took, though the state did not take legal action.
New Hampshire's ban on ballot selfies was ruled Facial challenge by the U.S. Court of Appeals for the First Circuit in September 2016 in the case Rideout v. Gardner. Recent Case: Rideout v. Gardner: First Circuit Strikes Down State Ban on Ballot Selfies, 130 Harv. L. Rev. 1728 (2017). The case was brought by the ACLU, with the support of the Reporters Committee for Freedom of the Press and Snapchat, which were among the groups filing amicus briefs in support of the challenge. The court held that the statute's stated justification, to prevent vote-buying or voter coercion, was not sufficient to sustain the restriction on speech, because "digital photography, the Internet, and social media are not unknown quantities -- they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation." The court thus determined that New Hampshire's law "is facially unconstitutional even applying only intermediate scrutiny" due to the "substantial mismatch between New Hampshire's objectives and the ballot-selfie prohibition." The state sought review by the Supreme Court, but in April 2017 the Court refused to hear the case, leaving the First Circuit's decision intact.
Michigan's ban was enjoined by a preliminary injunction in late October 2016 by the U.S. District Court for the Western District of Michigan, but that injunction was stayed in early November 2016 by the U.S. Court of Appeals for the Sixth Circuit, in the case Crookston v. Johnston, which in a 2-1 decision allowed the ban to remain in place. On May 8, 2019 the Michigan Secretary of State settled the case. Michigan now allows for taking pictures of your ballot inside the voting booth, but not pictures of yourself with a marked ballot.
New York's ban on photographing and displaying marked ballots, first enacted in 1890, was upheld in a September 2017 decision in the case Silberberg v. Board of Elections by the U.S. District Court for the Southern District of New York. Applying strict scrutiny, the court held that the state had a compelling interest in preventing vote buying and voter coercion and that the law was narrowly tailored to meet this interest.
Jurisdictions that currently prohibit ballot selfies are Alabama, Alaska, Florida, Georgia, Illinois, Kansas, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New Mexico, New York, North Carolina, South Carolina, South Dakota, Texas, and Wisconsin. Illinois's laws are the strictest of all; while most states with anti-ballot selfie laws make the offense a misdemeanor punishable by a fine, taking a ballot selfie in Illinois is a felony punishable by 1–3 years in prison.
Jurisdictions that currently allow ballot selfies or do not enforce laws against them are California, Colorado, Connecticut, Hawaii, Idaho, Indiana, Kentucky, Louisiana, Maine, Minnesota, Montana, Nebraska, New Hampshire, North Dakota, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington, Wyoming, and the District of Columbia.
Jurisdictions where the law is currently unclear are Arizona, Arkansas, Delaware, Iowa, Maryland, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee, and West Virginia.
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