Weeks after one federal appeals court ruled that New Hampshire’s ban on photos inside the voting booth is unconstitutional, a federal district court judge in New York state has come to a different conclusion about that state’s prohibition against sharing photos of your ballot.
New York Election Law § 17-130(10) makes it a misdemeanor for any voter in the state to show their ballot “after it is prepared for voting, to any person so as to reveal the contents,” or for anyone to solicit a voter to show their ballot after it’s been prepared.
Though that particular clause was enacted about 117 years before the smartphone became commonplace, a rep for the New York State Board of Elections has said that it’s possible that if the Board’s enforcement unit learns of someone sharing a photo of their filled-in ballot, it could be a violation of the law, punishable by a fine of up to $1,000 and (though incredibly unlikely) up to a year in jail.
Not even two weeks before the Nov. 8 election, a trio of voters from New York City filed a suit against the Board [PDF], alleging that the mere looming threat of potential prosecution results in an unconstitutional chilling effect on voters’ free speech.
The plaintiffs were asking the court to issue an injunction that would allow New York voters to take and post their photos if they wanted on Nov. 8.
Yet Judge Kevin Castel ruled yesterday [PDF] that there is good reason for the voting-in-secrecy requirement, and that there is not sufficient urgency to merit issuing an injunction only days before Election Day.
“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,” notes Castel. “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 plaintiffs alleged that the ban on ballot selfies is a content-based restriction on free speech, which means it must be very narrowly tailored to pass muster. That was the reason the First Circuit Court of Appeals deemed the New Hampshire rule unconstitutional, finding that the state’s purported reason for the ban — curbing voter intimidation — was not sufficient enough of a “reason to infringe on the rights of all voters.”
Yet Judge Castel ruled that the New York ban doesn’t merit this level of scrutiny, as “polling places are generally not considered to be public fora, and therefore any regulation of speech at a polling place is evaluated only under a reasonableness standard.”
And where the First Circuit panel was unmoved by the argument in New Hampshire that ballot selfies could be used to intimidate voters or buy votes, Castel concluded that New York officials demonstrated a reasonable need for this ban.
“Without the statute, employers, unions, and religious groups could encourage their members to upload images of their marked ballots to a single location to prove their commitment to the designated candidate,” he explains. “Those who declined to post a selfie could be swiftly outed and subjected to retaliation. This not-so-subtle form of voter intimidation is squarely within the zone of the statute’s intended reach.”
Beyond the issue of voter intimidation, the judge pointed to the logistical issues involved if every voter takes just a few extra seconds to snap that perfect selfie.
“[R]eal concerns exist about the delays and privacy intrusions that ballot selfies could cause,” he writes. “It is not unreasonable to expect that permitting voters to take selfies with their completed ballots will add unnecessary delays to the voting process. In addition, those taking ballot selfies inside a polling place may inadvertently capture the ballots of other voters who did not wish to have their ballots publicized.”
Additionally, notes Castel, the New York statute is viewpoint-neutral, meaning the restriction applies equally to all voters regardless of the parties and politicians they support.
Castel’s ruling is not likely to be the final word on ballot selfies in New York. He’s merely denying the plaintiffs’ request for a preliminary injunction that would have allowed selfies on Nov. 8.
As Courthouse News points out, an attorney for the plaintiffs has already said he ultimately expects to have this prohibition overturned.
California recently passed a law that would do away with its ballot selfie ban, but that doesn’t kick in until Jan. 1, 2017. Opponents of the ban recently asked a federal court to get rid of the prohibition in time for next Tuesday, but yesterday the court opted not to go that route.
Similarly, the Sixth Circuit Court of Appeals has decided to not sort out the issue of Michigan’s ballot selfie ban until after the upcoming election.
If your heart is intent on snapping a photo of you and your ballot next week, but you don’t want to run afoul of the law, Huffington Post has a state-by-state rundown of the applicable rules (as of April 2016).
by Chris Morran via Consumerist