jt-ballot

By: Brad Stringfellow,

Superstar Justin Timberlake caused a bit of a stir this week when sharing a selfie at a Tennessee polling station to encourage his thirty-seven million Instagram followers to vote. His actions bring to light the vast array of differences between states in regards to ballot selfies. Under Tennessee law, it is illegal to take photos or video at a polling location.1 If prosecuted, it is a Class C misdemeanor, which can lead to up to thirty days in jail and/or a fine up to fifty dollars.2

Fortunately, the Shelby County District Attorney General Amy Weirich responded to questions of prosecution of Mr. Timberlake by saying, “No one in our office is currently investigating this matter nor will we be using our limited resources to do so.”3

Mr. Timberlake flew from California to Memphis, Tennessee, in order to vote early and help promote this civic opportunity before the American people. His now-deleted Instagram message read,

“Hey! You! Yeah, YOU! I just flew from LA to Memphis to #rockthevote !!! No excuses, my good people! There could be early voting in your town too. If not, November 8th! Choose to have a voice! If you don’t, then we can’t HEAR YOU! Get out and VOTE! #excerciseyourrighttovote.”4

His non-partisan encouragement and enthusiasm for voting was endorsed with a slight rebuke in a statement by Secretary of State spokesman Adam Ghassemi, “We’re thrilled Justin can’t stop the feeling when it comes to voting … We hope this encourages more people than ever to vote, but Tennesseans should only use their phones inside polling locations for informational purposes to assist while voting.”5

Mr. Timberlake’s small gaffe brings a timely reminder of the difference between states in regulating voter behavior at the polls. Had his selfie taken place in Illinois, consequences could have been much worse with a punishment ranging between one and three years in prison.6 The policy reasons to discourage pictures at voting sites include privacy of other voters, influencing others, and a fear that photographic proof of voted ballots could lead to bought votes.7

Eighteen states currently have bright-line rules banning photos or public display of a vote at polling stations and/or of ballots, including absentee ballots.8 Punishments range from no enforcement action to felony prosecution for violating the respective statute.9

Thirteen states are currently unclear or sending a mixed message as to the right to photograph a personal ballot.10 Ohio and Missouri state officials, for example, have left ballot selfies to local election boards to deal with.11 Iowa, Maryland, Texas, and West Virginia do not allow photos at polling stations, but do allow photos of absentee ballots.12 Arizona does not allow photos within seventy-five feet of polling stations, but paradoxically, allows photos of completed ballots.13

Nineteen states and the District of Columbia accept ballot selfies ranging from begrudging acceptance to solid endorsement.14 Utah, Rhode Island, North Dakota, Nebraska, Minnesota, Louisiana, and Hawaii all have passed laws expressly allowing ballot selfies; like Justin Timberlake, some of these states see it as a means of encouraging more voter participation .15 The majority of other states allowing photos have done so either because they have no rule forbidding it, or have had a law forbidding photos repealed (Indiana and New Hampshire).16

More states may soon be allowing ballot selfies as the First Circuit Court of Appeals has found ballot selfies to be a valid form of free speech under the First Amendment.17 The court found New Hampshire’s purpose in preventing the ballot selfies as too broad to serve a specific governmental purpose worthy of infringing on first Amendment rights. 18

While Mr. Timberlake was able to share a photo of his ballot with no consequence, it would be wise to check state rules before following likewise. Perhaps in the future, all ballot selfies will be seen as a form of free speech. In the meantime, don’t cry a river if you can’t share a selfie.

 

Photo Source: http://media.phillyvoice.com/media/images/tmp4Qyhzc.width-800.jpg

  1. See Code Ann. § 2-7-142(b) (2016).
  2. See Code Ann. § 40-35-11(e)(3) (2016).
  3. Lisa R. France, Justin Timberlake Not in Trouble for Voting Selfie, CNN (Oct. 26, 2016, 2:07 PM), http://www.cnn.com/2016/10/26/entertainment/justin-timberlake-selfie/.
  4. Kenzie Bryant, A Gentle Reminder Not to Make Justin Timberlake’s Voting Mistake, Vanity fair (O 26, 2016, 12:44 PM), http://www.vanityfair.com/style/2016/10/justin-timberlake-voting-selfie.
  5. Katie Fretland & Linda A. Moore, Timberlake’s Voting Selfie Not Under Review by D.A., The Tennessean (Oct. 25, 2016, 8:14 PM), http://www.tennessean.com/story/news/local/2016/10/25/justin-timberlake-selfie-under-review/92730796/
  6. See Ballot Selfies: A Look at Where They Are Allowed or Not, The Associated Press (Oct. 23, 2016, 10:03 PM), http://bigstory.ap.org/article/04c313da0672422ba28bb57c4e4a7ca0/ballot-selfies-look-where-they-are-allowed-or-not.
  7. See France, supra note 3; id.
  8. See The Associated Press, supra note 6.
  9. See id.
  10. See id.
  11. See id.
  12. See id.
  13. See The Associated Press, supra note 6.
  14. See id.
  15. See id.
  16. See id.
  17. Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, 12-14, 21 (1st Cir. Sep. 28, 2016).
  18. See id. 

Photo Source:

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