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A Millennial's Voting Nightmare: No Selfies in the Voting BoothFrancis A. Kenny

With only a few days left in the 2016 presidential race, the bitter war between candidates is coming to an abrupt end. Behind the scenes, however, there is another battle brewing in federal courtrooms and state legislative chambers across the United States regarding the constitutionality of state laws banning the taking of selfies in voting booths. In the last decade, social media has become an integral part of our lives, and the so called “ballot selfie” question has become an increasingly popular topic in the law.

The primary justification behind the ballot selfie ban is the prevention of vote buying and voter coercion. Naturally, a person being paid to vote for a particular candidate would need to provide proof that they actually voted in accordance with their agreement. A ballot photo is exceptional proof of how someone voted.

Detractors of the ballot selfie ban argue that it violates their First Amendment right to free speech. The ballot selfie is how many American millennials put their choice for an elected official on display, share their gusto for the electoral process, and motivate their friends and family to get out and vote.

Currently, the act of taking a ballot selfie is illegal in eighteen states. Ballot selfies are legal in nineteen states, plus the District of Columbia, although many of those states appear to disfavor the practice. The legal status of ballot selfies is unclear in the remaining states. Interestingly, five states–Arizona, Maryland, Texas, West Virginia and Iowa–strictly prohibit taking photographs in voting booths, while taking photographs of mailed-in and absentee ballots is permitted. Federal courts across the nation are now being tasked with determining whether these laws are constitutional.

In Rideout v. Gardner, 2016 U.S. App. LEXIS 17622 (1st Cir. 2016), a unanimous three-judge panel of the First Circuit Court of Appeals determined that New Hampshire’s law banning ballot selfies violated the right to free speech under the First Amendment. New Hampshire attorneys argued that the law serves as a safeguard against hypothetical vote-buying schemes. In its thorough opinion, the court explained that the law is not narrowly-tailored because it reaches all voters, not just those who are willing to sell their votes. Moreover, the court stated 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[.] . . . We repeat the old adage: ‘A picture is worth a thousand words.’”

More recently, however, in Crookston v. Johnson, 2016 U.S. App. LEXIS 19494 (6th Cir. 2016), a closely divided panel of judges in the Sixth Circuit Court of Appeals reversed an injunction issued by a district court barring the state of Michigan from enforcing a ballot selfie ban. The court’s primary concern was that the plaintiff brought his suit against the state so close to Election Day. The court stated that the plaintiff’s motion and complaint raised interesting First Amendment issues, which could be fully litigated after this election.

Within the last five years, several states have carved out exceptions to their existing laws that allow voters to share photos of their ballots. New Jersey may be the next state to follow suit. State Assemblyman Raj Mukherji recently introduced Assembly Bill 4188, which would allow voters to photograph their own voted ballots while in the voting booth and to share those photographs on Internet-based social media.

While there is no uniform rule in New Jersey barring voters from taking photographs at polling places, state law prohibits voters from showing their voted ballots to others. The law also prohibits other persons from requesting that a voter show his or her voted ballot. These prohibitions have been interpreted to include taking ballot selfies. Violators could potentially face up to 18 months in prison and a $10,000 fine.

Assembly Bill 4188 unanimously cleared the Assembly Judiciary Committee, but the legislature will not vote on it until after this Election Day. Perhaps New Jersey voters should refrain from taking selfies until at least next year’s election.