Ballot selfie

Example of a ballot selfie from the 2016 United States elections marked for Hillary Clinton

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 his or her vote. Despite their increasing use in democratic countries during the 2010s, they have been found to violate laws enacted in the late 19th and early 20th centuries to curtail vote buying, particularly in the United States. No voter has been prosecuted for taking a ballot selfie, however, and one U.S. federal appeals court has found that such laws are a violation of the U.S. Constitution's First Amendment guarantees of freedom of speech.[1]

As Internet-connected mobile devices that include digital cameras have become more widespread, as has social media, there has been a marked increase in the number of digital self-portraits. Voters sometimes take a selfie that includes their ballot to encourage others to vote and to demonstrate their civic involvement. The selfie is often taken in or near a voting booth and the ballot paper is often marked. Sometimes absentee ballots are posted. Others do not take pictures of themselves in the voting booth, but photograph their ballots or the voting machines, either before or after filling them out.

Issues

Several concerns have arisen over ballot selfies, including compromising ballot secrecy, voter fraud, and voter intimidation. These have led to laws being passed prohibiting or restricting ballot selfies in some places. However, enforcement is quite low in most places, even where strict laws exist, due to the high number of people involved in the act, the resources needed to conduct strict enforcement, and the low negative effect of the action. Typically, law enforcement does not scour social media for violations that occur en masse. Authorities only take violations seriously if they are associated with voter fraud or intimidation or a vote-buying scheme.[2]

Legality

Laws regarding ballot selfies vary by country and jurisdiction, often with laws varying by jurisdiction even within a country.

Brazil

Brazil's election laws ensure the secrecy of the vote; therefore, taking any photos of the voting machine (or, for that matter, using any electronic device while voting) is a crime subject to prison and a fine of up to R$15 thousand.[3]

Canada

Elections Canada has encouraged voters to take selfies outside polling stations[4] but cautioned against photos of marked ballots,[5] as the Canada Elections Act makes it illegal to "show [a] ballot, when marked".[6]

Germany

In federal elections for the Bundestag, taking a ballot selfie in the voting booth was prohibited in 2017 to preserve ballot secrecy and make vote buying and voter intimidation more difficult. If the voting commission notices a voter taking a ballot selfie, the ballot paper is not accepted. The voter will then be given a new ballot paper on request after destroying the old one.[7][8]

The Netherlands

Ballot selfies are called stemfies in Dutch, literally "votefies". A platform for the protection of the rights of civilians sued the Dutch government in 2014 when minister of the interior and kingdom relations Ronald Plasterk said "I won't encourage anyone to take a ballot selfie, but it is allowed". The judge ruled that there is no law regarding ballot selfies and that it would not be up to the judge to say if it was wise of the minister to make statements the way he did.[9]

United States

In the United States, there is no federal law regarding ballot selfies, leaving the matter to the individual states.[10] Some U.S. states prohibit ballot selfies, imposing fines or jail terms for violations, while other states have no prohibition.[11]

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.[11][12][13] 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."[14] 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.[15]

In Tennessee, entertainer Justin Timberlake came under fire for a ballot selfie he took, though the state did not take legal action.[16]

Constitutional challenges against bans

Indiana's ban was enjoined on October 19, 2015 by a preliminary injunction by the U.S. District Court for the Southern District of Indiana.[17]

New Hampshire's ban on ballot selfies was ruled facially unconstitutional by the U.S. Court of Appeals for the First Circuit in September 2016 in the case Rideout v. Gardner.[18][19] 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.[10][20] 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."[20] 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."[20] 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.[21]

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, which in a 2-1 decision allowed the ban to remain in place.[22]

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.[23][24]

Laws by state

Most state laws making it a crime to photograph marked ballots were enacted as reform efforts in the early 20th century, as part of a broader campaign that saw the introduction of the secret ballot and the enactment of "other laws intended to prevent voter corruption and intimidation."[19] Many such laws remain in force even though "the outright buying of votes has receded as a significant issue."[19]

Jurisdictions that currently prohibit ballot selfies are: Alabama, Alaska, Colorado, Florida, Georgia, Illinois, Kansas, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New Mexico, New York, North Carolina, South Carolina, South Dakota, 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, in Illinois, taking a ballot selfie is a felony punishable by 1–3 years in prison.[25][26]

Jurisdictions that currently allow ballot selfies or do not enforce laws against them are: 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.[25][26]

Jurisdictions where the law is currently unclear are: Arizona, Arkansas, California, Delaware, Iowa, Maryland, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, and West Virginia.[25][26]

South Africa

South Africa's Independent Electoral Commission takes a hardline approach toward marked ballot selfies.[27]

References

  1. ↑ Stern, Mark Joseph (September 23, 2016). "Bring on the Ballot Selfies!". Slate. Retrieved November 6, 2016.
  2. ↑ Rachel Dissell (October 19, 2016). "Sharing photos of your ballot illegal in Ohio, but officials not likely to prosecute over selfies". The Plain Dealer.
  3. ↑ "Quem tirar selfie na urna eletrônica pode parar na cadeia - Tecnoblog". 2 October 2014.
  4. ↑ "Elections Canada on Twitter".
  5. ↑ "Don't get any ideas from the U.S., 'ballot selfies' aren't allowed in Canada, election officials say".
  6. ↑ Branch, Legislative Services. "Consolidated federal laws of canada, Canada Elections Act".
  7. ↑ Teresa Dapp (2017-04-01). "Wahl-Selfies sind jetzt verboten: Das Kreuzchen ist Privatsache".
  8. ↑ "Bundeswahlordnung (BWO), § 56: Stimmabgabe".
  9. ↑ ECLI:NL:RBDHA:2014:5657
  10. 1 2 Daniel Victor (April 27, 2017). "Selfies in the Voting Booth? Snapchat Fights for the Right". New York Times.
  11. 1 2 "Where can you take a selfie with your ballot?". Associated Press. October 24, 2016.
  12. ↑ "ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies"" (Press release). August 27, 2015.
  13. ↑ Gilles Bissonnette (August 12, 2015). "Judge Says New Hampshire's Ban on 'Ballot Selfies' Violates the First Amendment and 'Common Sense'". Speak Freely. American Civil Liberties Union.
  14. ↑ Richard L. Hasen (August 18, 2015). "Why the selfie is a threat to democracy". Reuters.
  15. ↑ Macaela J. Bennett (August 11, 2016). "Could ballot selfies help save democracy?". Arizona Republic.
  16. ↑ Andrea Mandell (October 25, 2016). "Justin Timberlake's voting selfie may have broken the law". USA Today.
  17. ↑ "Judge bars Indiana from enforcing 'ballot selfie law'". Associated Press/Indianapolis Star. October 20, 2015.
  18. ↑ David Kravets (September 28, 2016). "New Hampshire law barring ballot selfies is unconstitutional, court rules". Ars Technica.
  19. 1 2 3 Recent Case: Rideout v. Gardner: First Circuit Strikes Down State Ban on Ballot Selfies, 130 Harv. L. Rev. 1728 (2017).
  20. 1 2 3 "'Ballot selfies' get federal court blessing". CNN. September 28, 2016.
  21. ↑ Josh Gerstein (April 3, 2017). "SCOTUS won't hear case on ballot selfies". Politico.
  22. ↑ Brad Devereaux (November 4, 2016). "Federal court says no to Michigan ballot selfies again, days before election". MLive.com.
  23. ↑ Rick Hasen (September 28, 2017). "Federal District Court Upholds NY Ballot Selfie Law Against First Amendment Challenge, Applying Strict Scrutiny". Election Law Blog.
  24. ↑ "New York voters have no 1st Amendment right to snap ballot-booth selfies". Ars Technica. Retrieved 2017-11-04.
  25. 1 2 3 Abby Ohlheiser (October 26, 2017). "Analysis: Yes, your ballot selfie still might be illegal. Sorry". Washington Post.
  26. 1 2 3 "17 states where ballot selfies are illegal". Associated Press. January 4, 2017.
  27. ↑ Noni Mokati (2014-05-03). "Marked ballot selfie could get you jailed". Retrieved 2016-10-24.
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