By: Victoria Linney,
As the election on November 8th draws near, there is something aside from the candidates that you might consider when casting your vote – whether or not you are risking a fine when taking a ballot selfie. A ballot selfie is a photo of a completed ballot, and it is particularly popular among millennials.[1] Ballot selfies became especially prominent with the introduction of smartphones into our daily lives, as well as the ability to post photos on social media in seconds. These selfies are more likely than ever to occur this election cycle because in 2015, sixty-eight percent of American adults owned a smartphone, while eighty-six percent of people ages 18 to 29 owned a smartphone.[2]
However, many states have laws prohibiting sharing ballot images and information, hoping to protect voter privacy and prevent vote buying schemes.[3] In fact, some state legislatures chose to extend their existing bans on voting booth photography to ballot selfies,[4] but, these laws have clashed with the emergence of social media.[5]
Social media has provided Americans, especially millennials, with a method of showing election enthusiasm and, in essence, a way to provide positive peer pressure to get out and vote.[6] As such, some states have begun to hold such restrictions on ballot selfies unconstitutional. For example, recently the First Circuit found New Hampshire’s ban on ballot selfies to be unconstitutional.[7] The Court found that New Hampshire’s statute failed to meet the test for intermediate scrutiny, and that the purposes of the statute could not justify the restrictions it placed on speech.[8]
New Hampshire’s statute had been amended in 2014 to prohibit voters from displaying their ballots to others in order to show how they have voted through “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.”[9] Violation of this statute carried a fine of up to $1,000.[10]
In order for the statute to survive intermediate scrutiny, it must be “narrowly tailored to serve a significant governmental interest.”[11] The Court found that even if the premise that ballot selfies make voter coercion and vote buying easier was accepted that the statute would still fail for lack of narrow tailoring.[12] This failure is for two reasons: first, because the prohibition on ballot selfies impedes the speech rights of all voters, not just those who are casting a vote illegally, and second, because New Hampshire did not demonstrate that other laws aimed at prohibiting vote corruption were inadequate.[13] Therefore, the Court held that New Hampshire’s restriction on ballot selfies was unconstitutional.[14]
Nevertheless, some states are lifting their restrictions on ballot selfies. The Governor of California signed into law a new exemption that allows voters to disclose how they have voted if doing so does not violate any other law.[15] But, it is important to note that even though the law was signed this past September, it does not go into effect until January of 2017, and therefore Californians will not be able to take ballot selfies on this upcoming Election Day.[16]
However, if you live in Virginia, you are free to take ballot selfies this Election Day.[17] Previously the rules surrounding the use of electronic devices at polls in Virginia were unclear.[18] Then, in June, the State Board of Elections approved new regulatory language that loosened restrictions on electronic devices.[19] This led Virginia Attorney General Mark Herring to issue an opinion stating that Virginia voters were allowed to take ballot selfies as long as it does not disrupt other voters or the election.[20] So, Virginians, do not forget to vote on November 8th, and feel free to take a selfie with your ballot!
[1] See Mark Joseph Stern, Bring on the Ballot Selfies!, Slate (Sept. 23, 2016, 11:45 AM), http://www.slate.com/articles/technology/future_tense/2016/09/voting_booth_ballot_selfie_bans_violate_the_first_amendment.html.
[2] See Monica Anderson, Technology Device Ownership: 2015, Pew Res. Ctr. (Oct. 29, 2015), http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015/.
[3] See Joseph Weber, States, Courts Wrestle With Allowing “Ballot Selfies,” Fox News (Aug. 15, 2016), http://www.foxnews.com/politics/2016/08/15/states-courts-wrestle-with-allowing-ballot-selfies.html.
[4] See Stern, supra note 1.
[5] See Weber, supra note 3.
[6] See Stern, supra note 1.
[7] See Katie Rogers, Court Overturns New Hampshire Ban on Selfies (and Snapchat) in Voting Booths, N.Y. Times (Sept. 28, 2016), http://www.nytimes.com/2016/09/29/us/politics/voting-booth-selfie-snapchat.html?_r=0.
[8] See Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, at note 2 (1st Cir. Sept. 28, 2016).
[9] Id. at note 4.
[10] See id.
[11] See id. at note 14.
[12] See id. at note 18.
[13] See Rideout, 2016 U.S. App. LEXIS 17622, at note 19.
[14] See id. at note 21.
[15] See John Myers, Sorry, Californians, You Still Can’t Take Ballot Selfies on Nov. 8, L.A. Times (Oct. 13, 2016), http://www.latimes.com/politics/essential/la-pol-sac-essential-politics-updates-state-elections-officials-are-still-1476379986-htmlstory.html.
[16] See id.
[17] See Virginia AG: “Ballot Selfies” Not Illegal in Virginia, Wash. Post (Oct. 6, 2016), https://www.washingtonpost.com/local/virginia-ag-ballot-selfies-not-illegal-in-virginia/2016/10/06/2a89c9ba-8b86-11e6-8cdc-4fbb1973b506_story.html.
[18] See Graham Moomaw, Ballot Selfies Are Legal in Virginia, Attorney General Says, Rich. Times Dispatch (Oct. 5, 2016, 9:30 AM), http://www.richmond.com/news/virginia/government-politics/article_54c016c3-71d5-51e9-9745-974e63d68137.html.
[19] See id.
[20] See id.
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