New York State is voting on April 19. The New York presidential primary election is open to voters who are registered as Democrats or as Republicans. Registered Democrats will vote to nominate the Democratic candidate to the Presidential election and the registered Republicans will vote to nominate the Republican candidate to the Presidential election.
However, neither registered Democrats nor registered Republicans will be authorized to take selfies with their ballots and post them on social media. This is because, under New York election law, it is a misdemeanor to show one’s ballot “after it is prepared for voting, to any person so as to reveal the contents, or solicit a voter to do the same.”
New York Election Law § 17-130.10:
Misdemeanor in relation to elections. Any person who:
Shows his ballot after it is prepared for voting, to any person so as to reveal the contents, or solicits a voter to show the same [is guilty of a misdemeanor.]
What does that mean?
That mean that you can take a selfie with your ballot, after you have filled out the bubbles for the candidates of your choice, the Presidential nominee and six of the delegates, or if you are voting with a voting machine, after you have made your choices before pulling the trigger down or pressing the button.
You cannot ask someone to post their own selfies with their ballots either, if they have filled out the bubbles as to reveal for whom they voted.
However, the law can be interpreted as authorizing voters to take a selfie with their ballot, before it has been prepared for voting. In New York, absentee voters are given paper ballots. Others are using voting machines. There are several voting machines models being used in New York State, depending on the county where you are voting. So you can take a selfie with your paper ballot, if it does not show for whom you are voting, and you can take a selfie in front of the voting machine, before starting the process to vote.
You can also take a selfie after you exit the voting poll, showing your nifty I Voted! sticker. However, New York Voting Laws prohibit, while the polls are open, to do
“any electioneering within the polling place, or in any public street, within a one hundred foot radial measured from the entrances designated by the inspectors of election, to such polling place or within such distance in any place in a public manner.”
This can be interpreted as requiring that you step out at least one hundred feet from the polling station before taking your selfie, if you plan to use that selfie to promote your candidate, or if you post it instantly on social media and certainly if you shout Yeah [insert name of your favorite candidate] ! while taking the selfie.
Also, it is forbidden by New York Election Law to have any “political banner, button, poster or placard in the polling place or within such one hundred foot radial.”
Therefore, you cannot wear the tee-shirt and the baseball cap you bought to support your candidate to go voting, nor can you wear any button showing your support for your candidate. If you wish to take a selfie wearing these after you voted, you will need to cover them up while in the polling place and while being within 100 feet from it. You can display them again or pull them out of your bag and take your selfie outside of this zone.
You may wonder: Why all these rules? Isn’t it free speech to take and publish a selfie?
Selfies Ban and Free Speech
This argument was made by three voters in New Hampshire who had posted pictures of their ballots on social media in 2014. But the State of New Hampshire had adopted that year a law making it unlawful for voters to take and disclose digital or photographic images of their completed ballots or to share such images on social media or by other means. This is considered a violation, and carries a possible fine of $1,000.
The law was enacted as a way to protect voters from being intimidated or coerced into voting for a particular candidate. One can imagine that a family member or an employer would pressure a voter to vote for a particular candidate and asking to see proof of it on social media. However, voter coercion is already prohibited by federal law.
- U.S.C. § 10307(b)
Intimidation, threats, or coercion
“No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 10302(a), 10305, 10306, or 10308(e) of this title or section 1973d or 1973g of title 42.”
States also have their own laws prohibiting vote buying and voter coercion, and New Hampshire has sucha law, including one prohibiting giving liquor to voters to influence an election.
N.H. Rev. Stat. 659:39 Giving Liquor
“Any person who shall directly or indirectly give intoxicating liquor to a voter at any time with a view to influencing any election shall be guilty as provided in RSA 640:2.
These three voters were investigated by the Attorney General’s Office, and they filed a suit to challenge the constitutionality of the law, claiming it was a violation of the First Amendment. They won in August of last year, as United States District Judge Paul Barbadoro from the Federal District Court of New Hampshire found the New Hampshire statute to be unconstitutional as a content-based restriction on speech. As such, in order to prevail, the government would have had to prove that they could not achieve their goal, to prevent vote buying and vote coercing, with less restrictive alternatives.
Judge Barbadoro noted that even as small cameras have been available for decades and smart phones equipped with a camera have been available for fifteen years, there had been no instance of them having been used to take images of ballots in order to buy or coerce votes.
Judge Barbadoro concluded that the government could “simply make it unlawful to use an image of a completed ballot in connection with vote buying and voter coercion schemes,” instead of generally prohibiting taking an image of one’s ballot.
House Bill 1143 was then introduced. It would have reversed the changes made in 2014 to the voting law and strike down the prohibition on showing a ballot. However, the bill was tabled (meaning it was killed) on March 23, as 221 representatives voted against it and only 119 in favor of it.
But the State of New Hampshire has appealed Judge Barbadoro’s decision. On April 15, the attorney for the three ballot selfie takers filed his brief for the appellees, and calls posting ballot selfies “innocent, political speech” (p.14). We’ll see how this case will evolve.
Go Vote!
Anyway, it is legal to encourage voters to go vote, and this is what I am doing now. Go vote on the 19th! If you are not yet registered, and you are eligible to register to vote, do so ASAP so you will be able to vote in the next election!
Image is courtesy of The New York Public Library Digital Collections (Public Domain)
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