Three voters registered in New York have filed a suit in the Southern District of New York (SDNY) (the SDNY Complaint) against the New York Board of Elections and New York City Board of Elections. They claim that the New York ban against ballot selfies violates their freedom of speech, and are asking the SDNY to preliminary enjoin Defendants from enforcing New York Elections Law banning booth selfies.
On November 3, 2016, District Judge Kevin Castel denied Plaintiff’s motion for a preliminary injunction.
“This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.”
The New York Law Banning Booth Selfies
Plaintiffs claimed that they are prevented from engaging in political expression and speech because New York Election Law, N.Y. Elec. Law § 17-310(10) makes it a misdemeanor to show one’s ballot “after it is prepared for voting, to any person so as to reveal the contents, or solicits a voter to show the same” (see here for a former post on the topic).
Judge Castel wrote about the history of the New York law:
“The provision, enacted 126 years ago, was part of 19th century legislation popularly known as the Australian ballot reforms. The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason. As Justice Blackmun noted in Burson, the nation had been plagued with voter bribery prompted by ballots that political parties “often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance.” 504 U.S. at 200. The problem was not resolved by standardized ballots because “the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box.” Id. Because of the statute, those who would engage in ballot policing, for the purpose of bribery or to enforce orthodoxy among members of a group, whether members of union, employees of a company, or members of a religious group, have longed been deprived of an essential tool for success. The absence of recent evidence of this kind of voter bribery or intimidation does not mean that the motivation to engage in such conduct no longer exists. Rather, it is consistent with the continued effectiveness of the New York statute.”
The SDNY Complaint noted that similar laws have been struck down in three states, Michigan, Indiana and New Hampshire.
New Hampshire Law Banning Booth Selfies Found Unconstitutional
Indeed, on September 28, the First Circuit, which is the Federal Court of appeals for New Hampshire, Maine, Massachusetts, Rhode Island, and Puerto Rico, struck down a New Hampshire law which made ballot selfies illegal, Rideout v. Gardner. The Court found that its “restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment.”
The purpose of the New Hampshire law banning selfies at the booth was to avoid vote buying and voter intimidation, and voters who published their voting selfies could be fined $ 1,000 under N.H. Rev. Stat. Ann. § 659:35.
659:35 Showing or Specially Marking Ballot. –
I. No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.
The First Circuit applied the intermediate scrutiny test, used by the courts to verify the constitutionality of a content-neutral regulation which purpose is unrelated to the content of expression. Such regulation must be “narrowly tailored to serve a significant governmental interest.” If it does not meet this standard, it violates the First Amendment.
The First Circuit applied the test and found the statute facially unconstitutional, as the government could not justify the restrictions that banning booth selfies imposed on speech. The Court noted that “the legislative history of the bill does not contain any corroborated evidence of vote buying or voter coercion in New Hampshire during the twentieth and twenty-first centuries.”
The Court also noted that even if ballot selfies would indeed “make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.” In other words, the law cannot solve a problem with a hedge hammer, but must instead be narrowly tailored to only forbid what is necessary to achieve its goal. A general ban on booth selfies is too broad a measure, as it “reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reason.” There is not a current voting fraud problem which can only be solved by banning selfies at the booths. The First Circuit concluded that “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.”
Booth Selfies and Democracy
The SDNY Complaint argued that ballot selfies “[have] become a common manner of political expression.” Snapchat (now Snap) had filed an amicus curiae brief in the Rideout v. Gardner case where it pointed out that that “younger voters participate in the political process and make their voices heard” by taking selfies at the polls. Its brief had cited a Pew Research Center 2012 report, which found that “22% of registered voters have let others know how they voted on a social networking site such as Facebook or Twitter,” that “30% of registered voters have been encouraged to vote for [one Presidential candidate or the other] by family and friends via posts on social media such as Facebook or Twitter” and that “20% of registered voters have encouraged others to vote by posting on a social networking site such as Facebook or Twitter.” These percentages are likely to be higher this year as more and more people are active social media users.
A Hodgepodge of Laws
Booth selfies are banned in some states, tolerated in others, and legal in some. The press has recently published helpful guides so that voters can check out whether they can indeed share their voting selfies on social media, see here or here. However, these guides may become quickly obsolete, as several cases challenging the constitutionality of law forbidding booth selfies have been filed.
The Sixth Circuit upheld on October 28 Michigan’s ban of booth selfies for this upcoming election. The Court reserved the right of plaintiff to fully litigate his First Amendment complaint, but only after the election, as the issue is too important to be decided too quickly (the complaint had been filed in September 2016). The Sixth Circuit noted, however, that the “ban on photography at the polls seems to be a content neutral regulation that reasonably protects voters’ privacy—and honors a long tradition of protecting the secret ballot.”
In California, the ACLU had filed a suit on October 31, requesting the District Court for the Northern District of California to issue a temporary restraining order and a preliminary injunction to enjoin California Secretary of State to enforce the California law banning booth selfies, Cal.Elec. Code §§ 14276, 14291. The Court rejected the demand on November 2. A new law will allow a California voter to disclose how she has voted, but it will only enter into force on January 1, 2017, too late for the Presidential Elections.
What is next? New York voters will not be able to share their booth selfies in this week’s election. Regardless, please VOTE!
Image is courtesy of Flickr user justgrimes under a CC BY-SA 2.0 license.
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