By: Alexis George

As yet another election cycle approaches one seemingly harmless practice is still widely debated in the United States – should voters be able to take photos of themselves, or selfies, while carrying out their civic duty? In the age of widespread social media use it’s not difficult to see how this question has become more widespread over recent years. Nevertheless, unbeknownst to many voters, taking a selfie while in a voting booth or with your completed ballot is actually illegal in many states.

One of the best examples of this little known fact playing out in real life is the case of Justin Timberlake. Timberlake took a photo of himself with his filled out ballot for the 2016 Presidential election and posted it on social media but did not find out until afterwards that in his home state of Tennessee, it is actually a misdemeanor offense to take ballot selfies.[1] In fact, in Tennessee the misdemeanor offense of taking photos at polling places carries the potential punishment of thirty days in jail and a fifty dollar fine.[2] The issue of taking photos at polling places has come up in other states as well as at least five courts have ruled on the issue resulting in a circuit split between the First and Sixth Circuits over whether the practice should or should not be legal.[3]

Further, it was determined in November 2016 that as many at least 17 states had laws against ballot selfies while in only 19 states was taking a ballot selfie legal or not banned.[4] In the remaining states laws are unclear as to whether taking photos at polling places is or is not legal.[5] In Oklahoma for example, an official told the Associated Press that the law “appeared to ban” ballot selfies but that the penalties for breaking the law by posting a photo taken at a polling place “aren’t clear.”[6]

One of the main reasons for the disagreement among states over the legality of ballot selfies is the issue of balancing freedom of speech against the integrity of the voting process.[7] Jeffrey Hermes, deputy director of the Media Law Resource Center described the problem as “a very unusual case” as it is usually considered a violation of the First Amendment to ban political speech, which essentially is what taking a ballot selfie is.[8]

Many proponents of laws banning taking photos inside polling places or with completed ballots argue that these laws need to be upheld because they protect voter privacy.[9] Proponents on this side argue that the laws not only protect voters’ integrity, but also protect voters from being intimidated or induced.[10] The idea here is that if ballot selfies are allowed it could encourage “vote buying,” or the practice of voters being rewarded for providing proof that they voted for a certain candidate.[11] This argument makes it difficult for many states to come to a consensus about whether to make ballot selfies legal or not as voter privacy has long been a central concern of state legislatures—especially those which have enacted laws banning ballot selfies.

On the other side of the issue there is also a very well-founded concern. Proponents of making ballot selfies legal often argue that the selfies are protected by the First Amendment’s freedom of speech provision because they represent political speech.[12] Further, protecting political speech has consistently been an important theme throughout Supreme Court precedent.[13] Another argument to legalize ballot selfies has been that it encourages more civic engagement among younger generations and essentially makes the whole process of voting more fun. In fact, in an amicus brief urging the legalization of ballot selfies in New Hampshire, Snapchat, a popular communications app, argued that selfies are how young voters engage in the political process.[14]

Even today it is not clear whether an overall move towards the legalization of ballot selfies will take place. Given the popularity of technology and social media in general, the issue has garnered more support over the years. Nevertheless, even leading up to the approaching midterm elections a number of state legislatures have still decided against making ballot selfies legal.

 

[1] Roy S. Gutterman, Ballot Selfies: New Political Speech in Search of First Amendment Protection in Social Media, 8 Wake Forest J. of L. & Pol’y 211 (2018).

[2] See id.

[3] See id.

[4] Jefferson Graham, Want to take a ‘ballot selfie’? Here’s where it’s legal, and not, USA TODAY (Nov. 6, 2016, 10:01 AM), https://www.usatoday.com/story/tech/news/2016/11/06/ballot-selfie-beware-s-often-illegal-despite-flurry-late-attempts-change/93299316/.

[5] See id.

[6] Abby Ohlheiser, Yes, your ballot selfie still might be illegal. Sorry., Wash. Post (Nov. 8, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/10/26/yes-your-ballot-selfie-still-might-be-illegal-sorry/?utm_term=.381c05e8dc24.

[7] See id.

[8] See id.

[9] Katie Reilly, Here’s Where You’re Allowed to Take a Selfie While Voting, TIME (Oct. 26, 2016), http://time.com/4546190/2016-presidential-election-ballot-selfies/.

[10] Katie Rogers, Can You Take a Voting Selfie? States Wage Legal Battles Days Before Election, N.Y. Times (Nov. 2, 2016), https://www.nytimes.com/2016/11/03/us/politics/voting-selfie.html.

[11] Graham, supra note 4.

[12] Daniel A. Horwitz, A Picture’s Worth a Thousand Words: Why Ballot Selfies are Protected by the First Amendment 18 SMU Sci. & Tech. L. Rev. 247, 253 (2015).

[13] Gutterman, supra note 1, at 229.

[14] Graham, supra note 4.

Image Source: https://www.texastribune.org/2016/10/26/texplainer-can-i-take-ballot-selfie-texas/