Election 2018

Is Your Ballot Selfie Legal?

Banning ballot selfies to stop voter fraud is like "burning down the house to roast the pig" said the First Circuit Court of Appeals. But many states still do it.

|

Carsten Rehder/dpa/picture-alliance/Newscom

Two years ago, pop star Justin Timberlake posted a photo of his 2016 election ballot—and ushered in a wave of warnings about the potential dangers of snapping pics in the voting booth. Back then, "ballot selfies" were definitely illegal in 19 states and potentially illegal in 11 others, according to an Associated Press analysis. But some things have changed since then.

Last year, laws legalizing ballot selfies took effect in two states. Residents of California and Colorado are now in the clear.

Lawmakers in several other states attempted to legalize ballot selfies but were unsuccessful. In Oklahoma, for instance, a bill passed both chambers of the legislature but was vetoed by Gov. Mary Fallin. Elsewhere, such as Illinois and New Jersey, legislation simply stalled.

Meanwhile, several lawsuits concerning ballot-selfie bans are still winding their way through federal courts. Joel Crookston of Michigan, for example, sued to stop his state's ballot-selfie ban in 2016.

"Is this the most important free speech case under the sun? No," Crookston's lawyer, Stephen Klein, tells the AP. "But it's a simple act that allows people to be involved in the electoral process. It's not a threat to democracy. It's a celebration."

The rationales for the bans vary, but they generally relate to fears about voter intimidation and vote selling. "Photographing a marked ballot is illegal in part because such photographs could be used as proof of a vote for a particular candidate in a vote-buying scheme," explains the North Carolina State Board of Elections & Ethics Enforcement.

The severity of the crime varies wildly by state. In Tennessee, where Timblerlake voted two years ago, taking a ballot selfie is a misdemeanor punishable by up to 30 days in jail and a $50 fine. In Illinois, it's a class four felony, punishable by up to three years in prison and a fine of up to $25,000.

In Ohio, taking photos of completed ballots is also a felony. Yet the Cincinnati Enquirer tells readers that while "legally" ballot selfies are a no, "practically, no one is going to stop you….[T]here are no records of Ohio police ever enforcing the prohibition." It seems Ohio is one of several states (including its western neighbor, Indiana) where the current legal status of ballot selfies is murky.

Ohio's law against photographing ballots was passed in 1997; in other states, various statutes used to ban ballot selfies (under a more general ballot-privacy rubric) are much older. New Hampshire became the first state to add a more modern twist to these rules in 2014.

"Like many states, New Hampshire already prohibited voters from disclosing their marked ballot," notes the National Conference of State Legislatures (NCSL). "The 2014 legislation (HB 366) took it a step further by explicitly prohibiting voters from taking a digital image of a marked ballot and distributing or sharing it on social media."

A federal court would soon strike down the New Hampshire law as an unconstitutional restriction on free speech. "The court concluded that the ballot selfie is constitutionally protected political speech that can be restricted only by meeting the highest standard of constitutional scrutiny," the NCSL reports.

And the U.S. First Circuit Court of Appeals upheld the lower court ruling, saying banning ballot selfies to stop voter fraud was like "burning down the house to roast the pig." New Hampshire officials appealed to the U.S. Supreme Court, but SCOTUS declined to hear the case.

Not every federal court concurs. Last year a federal judge in Manhattan permitted a New York law banning ballot selfies.

CNN just released a state-by-state breakdown of ballot selfie laws—but beware. At least several states seem to be listed incorrectly:

  • Iowa is included in CNN's "don't even think about it" category, but the secretary of state's office there recently said, explicitly, "yes, you can take a ballot selfie."
  • Oklahoma is listed as a gray-area state, but its governor vetoed a law legalizing ballot selfies.

As far as I can tell, ballot-selfie bans of some sort persist for at least 17 states in 2018: Alabama, Alaska, Florida, Georgia, Illinois, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, South Carolina, South Dakota, Tennessee, Texas, and Utah. In some of these states, taking photographs anywhere within or near a polling site is illegal; others permit pictures inside voting booths and pictures of blank ballots but not ballots that have been completed.

At least 20 states (and D.C.) allow pictures inside polling stations regardless of whether a ballot has been filled out yet. These include California, Colorado, Hawaii, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and Wyoming.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

49 responses to “Is Your Ballot Selfie Legal?

  1. It’s just a dumb thing to do and you should be embarrassed.

    1. He might as well have taken a selfie with a Clinton/Kaine ’16 bumper sticker.

  2. Is such a quirky website legal?

  3. >>>In Illinois, it’s a class four felony, punishable by up to three years in prison and a fine of up to $25,000.

    of course it is.

    1. your ballot picture might contradict the ballot cast for you by machine officials

      1. word. extreme deterrent erequired.

  4. Here’s my ballot selfie (raises middle finger)

  5. Honestly, it is a bit complicated because of the specter of voter intimidation.

    What people are scared of is much less the large races than the local races. Crony business owner makes some kind of deal with crony politician, then pressures his employees to go out and vote for said politician. The fear is that he could require selfies of their ballot showing the candidates they’re told to endorse or they’ll lose their employment.

    While that’s a bit out there, people are often afraid to report that the person signing their paychecks might be doing something illegal.

    1. That is certainly reason enough to taze anyone that does it. Why do people have to make a fetish of voting beyond putting their “I Voted” sticker on their bongs?

    2. That is certainly reason enough to taze anyone that does it. Why do people have to make a fetish of voting beyond putting their “I Voted” sticker on their bongs?

    3. That is certainly reason enough to taze anyone that does it. Why do people have to make a fetish of voting beyond putting their “I Voted” sticker on their bongs?

      1. did that. not three times, but did that.

        1. Now I go and put them on random tombstones

          1. lisa: do you know what this means?
            bart: the dead have risen and are voting republican!

          2. That is certainly appropriate in Chicago ….

            “A good Democrat is one that has been dead 30 years and never missed an election.”

    4. Also, it’s unsurprising to me that California decided that photos at the polls are legal. There’s obvious no fear of voter intimidation in that state, since everyone votes Democrat anyway. No need worrying about local businesses being in bed with the city government.

      1. Well if the rest of the lower 49 would recall their prog relatives back from whence they came California would be back to it’s sensible self. Electing Reagan, Pete Wilson, Deukmejian (RIP), Nixon.

        1. Unfortunately, Progs are like locusts. They move in swarms, destroy everything around them, then move to a new place and do it again. Now the Progs are moving out of CA to Seattle, Portland, CO, and God Forbid … TX.

    5. Honestly, it is a bit complicated because of the specter of voter intimidation.

      That’s why it should be illegal for trannies and homos to put their selfies on the internet. It could lead to bullying and intimidation. In fact, anything that anyone does that could possibly lead to someone else attempting to intimidate anyone else should be illegal.

      1. >>> anything that anyone does that could possibly lead to someone else attempting to intimidate anyone else should be illegal.

        ha. intimidator.

    6. The fear is that he could require selfies of their ballot showing the candidates they’re told to endorse or they’ll lose their employment.

      So what stops me from filling out a ballot, sending my selfie to my employer, telling officials I fucked up my ballot, and then filling out a fresh one however I like?

      Or are crony employers and crime syndicates usually thwarted by grade school tricks?

      1. Exactly. The selfie doesn’t prove that you put the selfied ballot in the box. But, I get it… they’re trying to do everything they can to discourage a voter’s votes being coerced by an external entity. It’s a laudable sentiment, but, since vote-by-mail is pretty much open to everybody in many states, the horse has left the barn, folks. Still, though the laws might now be toothless (insofar as they don’t really prevent voter manipulation), I roll my eyes at those who express outrage over them. Just stop worrying about your Instagram feed for a couple of minutes, put your phone away, and just go vote. Nobody’s going to unfriend you while you’re away.

    7. A voter intimidation scheme with a paper trail. Sounds brilliant.

      1. It sounds like the sort of thing a guy like Anthony Weiner would perpetrate and, when caught, would say “My phone got hacked!”, resign, and then go on to run for Mayor.

      2. It’s the sort of thing that could still happen in smaller localities and get buried because there’s enough ineptitude and corruption in local government. Especially in an atmosphere where people generally believe the government is corrupt anyway, allegations of corruption can get lost in the wind.

        I’m not saying I think this is a statute that should be enforced under penalty of law, but I’m in favor of making sure that ballots remain private.

    8. the specter of voter intimidation

      This has happened since forever. It’s why we went to the secret ballot by 1890. And the 1896 election was almost certainly the result of massive voter intimidation in the industrial midWest that served to defeat WJ Bryan. The 1896 form of intimidation was – if Bryan wins, the banks are going to immediately call our loans and you will all be laid off. That sort of collective intimidation does not require any info about your individual vote since it is an intimidation based on the collective outcome. In fact, those intimidated will actually get involved in getting out the vote. The techniques have become sneakier and more effective – and is basically the core of the ‘lesser evil’ strategy (who is easily the most reliable voter – as long as you can keep intimidating them about the ‘other side’).

      IOW – there are plenty of ways to intimidate voters and there is no ‘rule’ that punishes the individual voter that will stop that. The only thing that will stop that is actually prosecuting people for election interference. But the parties and those with power are the major violators of that – and all sides can agree that they won’t be prosecuting themselves anytime soon.

  6. What about dick pics?

  7. In my day we did Harlem Shake videos with the ballot box and everyone was fine with it.

  8. All of the reasons against the ballot selfie sound “credible”.

    1. Thank you ENB.

  9. Banning ballot selfies to stop voter fraud is like “burning down the house to roast the pig” said the First Circuit Court of Appeals.

    Aside from the fact that we all know voter fraud is a myth, like Bigfoot or the Loch Ness Monster or a sober Irishman, how exactly is it like “burning down the house to roast the pig”? Burning down the house is a terrible case of overkill in the case of roasting a pig, but it does get the job done. Banning selfies may be a silly over-reaction to voter fraud and it’s not even going to get the job done, it’s not like there’s not a hundred other ways to commit voter fraud.

    1. Voter fraud? [Luke Skywalker voice on] That’s impossible! [/Luke Skywalker voice off].

    2. A myth my ass. We have Democrats on video admitting they need illegal aliens voting to keep themselves in office. And what about California’s DMV registering tens of thousands of them to vote?

      1. Not to mention they have been caught busing people from Michigan to Ohio to vote a second time.

  10. What about a picture of taking a shit on the ballot, then voting for that shit instead of any politician?

  11. Heard that some candidates were being left off ballots in my state, so there was a call to take a pic if that was suspected.

  12. Iirc the texas system will not show both your votes and the confirmation flag at the same time.

    A photo can only show what you selected prior to submission. So you can fake it.

    1. Good design; jokes about Illinois here aside there is little chance that so many ballot selfies will be taken that it provides an important countermeasure to fraud, so the opposite consideration–about disallowing voters to prove to outsiders how they voted–should be in play. Thus, strictly limit absentee voting, no mail-in. And like TX prevent voters from producing proof of vote by system design, not 1A violations.

      Though IMO ideally there should be no computer voting in the first place. A voting system should be unhackable and instantly inspectable by the public at close. In other words, the old lever machines that NY used until they were junked for expensive ones that must be replaced every few years, or at least electric machines with their functionality built into their hardware.

      1. I liked the old mechanical machines and their satisfying “ka-chunk” too, but they were apparently prone to jamming, and more expensive to maintain. It’d be interesting to look at the economics of the alternatives.

        1. Aside from the awesome aesthetics of the civic ritual as you point out, the economics is that the old ones lasted forever and the new ones are expensive as hell and must be replaced every few years. In this age of dirt cheap consumer technology people forget that even the most unimpressive-seeming professional, industrial, specialized or otherwise non-mass-market tool is going to be incredibly expensive.

          The biggest advantage, and I will admit this is substantial, is that the only race-specific hardware you need to prepare and provide is a pile of ballot papers; you can feed that into any ballot counting machine in the polling site; so if one malfunctions, even if all but one at t a huge polling site malfunctions, there is little inconvenience to voters because every voter at the site can line up (you don’t spend much time at the ballot counting machine) at the one machine. Both Democrats and Republicans in a primary, and voters from every ED in a multiple-ED polling site; they can all use the one machine, whereas previously broken machines could bring a particular race to a brief standstill while everyone waited for the technician to come. (In practice they came rather quickly and were very good at their jobs, and like I said the machines are simple.) Also the new system should reduce lines even under normal circumstances, although that is rarely an issue in low-turnout and well-staffed NY elections.

          1. …I will also say that the huge practical disadvantages of the old system have faded substantially, where results would come in hours late while the retiree, no-exam-administered poll workers struggled with the elaborate protocols for the new “this is the 21st century; the old system was a stoneage embarrassment” high-tech system. Now they have greatly simplified the protocols, made them less dependent on the poll site workers, and everyone is just a lot more used to the tech now.

  13. Selfies might be conducive to voter intimidation or vote-selling in punchcard states, but under every electronic or mechanical system I know, your vote isn’t actually cast until the slate is wiped clean by pushing the big button or pulling the lever. Anyone taking a still picture of their votes would be free to reset them after taking the pic. Only a video of the act of finally casting the vote would be sufficient to prove you’d actually cast it as shown.

    The vote buyer/extorter could still require such a thing, but criminalizing stills would be senseless.

  14. I believe it is important to preserve the secrecy of the secret ballot, and therefore these selfies should be banned. Otherwise employers like Google definitely will discipline and fire employees for voting in ways the boss doesn’t like.

    But for the same reason, I also believe we need to reform the way voting sites keep their records, to make it impossible to discover how an individual voted by examining those records after the election, which is now quite possible.

    1. Are you sure you actually know how voting is conducted? Because at least the scantron system used back in Michigan before I moved wouldn’t have allowed that.

  15. OK, so the idea of the voter-selfie to prove to your boss that you voted the way they wanted you to vote might be one of the ONLY serious justifications (and illegal and stupid) for photographing your ballot.

    Next, as was posted above, take the selfie of your ballot, then crumple it up, get a replacement ballot and vote the way YOU wanted, NOT the way you’ll be reporting back to your boss…. so that’s ineffective, too.

    Some years ago, I sat down over a weekend and tried to design a completely unhackable voting system, start to finish, and in the end, I gave up, because I could see failure points at nearly every step in the process between getting your ballot and watching the final results on TV Tuesday night.

    Today, I think there MIGHT be ONE way to guarantee an unhackable voting system, and the technology to implement it is still five or fifteen or more years away. Here’s my guess…

    You vote on a computer screen. You encode your vote with a blockchain key that only you know. The ‘votes’ go off to a central computer which tallies all votes. Results are, like, 100% done when the polls close.

    Continued….

  16. The rest of it…

    Now, here’s the kicker… You also must have access to the database on that central computer that has ALL the votes in it. By entering your blockchain key AFTER the final tally is posted and the ‘results are in’ for who won and lost, you go in and verify that YOUR VOTES are still there in the final tally and they’re exactly the same as you entered “in the voting booth.”

    Your ‘voting machine’ must be able to print out a facsimile of your actual votes which MUST Exactly Match what you chose on the computer screens in the first place. If they don’t you press “cancel” and “restart” until the match is perfect.

    If your vote printout is NOT exactly the same as the blockchain key verified votes you see in the Final Tally Database, you send a copy of your original printout in, and the final vote is invalidated immediately until that Perfect Match can be demonstrated.

    I think I could identify at least one hackable or falsifiable step in any voting system proposed today. I’d like to offer the challenge to everyone… YOU sit down and try to design the Perfect Voting System, then have it reviewed by several other people to see if they can find any failure points in your system.

    Good luck with that.

    1. Keep in mind that the “perfect” voting system not only must be perfect, people who don’t have degrees in computer science must understand it well enough to trust it.

  17. I think it’s silly to make this illegal. I wanted to take a picture of my son voting for the first time two years ago. Wasn’t allowed to. Just a silly law.

Please to post comments

Comments are closed.