Update Nov. 4, 2014: The New Hampshire ACLU has filed a lawsuit claiming that a new state law banning “ballot selfies” violates the First Amendment. The New Hampshire law imposes a fine of up to $1000 for a sharing a digital image of a market ballot on social media, the Boston Globe reported.
Tuesday, Nov. 6, 2012: This post has been updated.
Proud
voters are already posting photos
of their ballots
on Instagram—sometimes with the names of their
chosen candidates filled in. But before you snap a shot of your vote, you might
want to check your state laws. As the Citizen Media
Law Project points
out as
part of their guide to documenting the 2012 election, showing your marked
ballot to other people is actually illegal
in many states.
Laws
against displaying your ballot are motivated by concerns about vote buying,
since voters being bribed might need to be prove they voted a certain way.
While
laws vary from state to state, the penalties for showing your ballot can be
stiff.
“It’s illegal to display your voted ballot and violators
could be convicted of a misdemeanor,” Colorado secretary of state spokesman
Richard Coolidge told ProPublica. The penalty, according to Colorado law: a
fine of not more than $1000, imprisonment in county jail for not more than one
year — or both.
In
Michigan
and Hawaii,
voters who show their ballots to other people can, in certain circumstances, have
their votes thrown out.
It’s not clear how these rules apply to sharing a picture of your ballot on the Internet, or whether states would actually prosecute voters for an Instagram shot. Officials from Hawaii have yet to respond to a request for comment.
In Michigan, voters will have their ballots confiscated if they are found taking a photo or video of a ballot in a polling place, said Fred Woodhams, a spokesman for the Michigan department of state.
Once an exposed ballot is confiscated, voters do not get a new one.
That doesn’t mean the state is monitoring the web for violations. “Certainly, we’re not going to Instagram to find people’s ballots,” he said.
“Virtually all of these laws are older
laws that predate the current technology,” said Jeffrey Hermes, a First
Amendment expert who wrote the Citizen Media Law Project’s guide to ballot
disclosure rules.
But,
he warned in his guide, “It is easy to imagine situations in which the
thoughtless posting of a marked ballot on Facebook could result in negative
consequences.”
Rick
Hasen, an election law expert at the University of California,
Irvine, said that taking a picture of your marked ballot is “bad news.”
“Hard
as it is to believe, before the secret ballot there was a lot more vote buying
and we don’t want more of that now,” he wrote in an email.
A
North Carolina elections official told WRAL last week that a “criminal
vote-buying scheme” in another state had involved cell phone pictures of
completed ballots.
Some
states simply prohibit using phones or cameras within a polling place.
Allowing
voters to publicly display their ballots might also undermine the culture of
the secret ballot, Hermes said. Another factor is the fear that voters might be
intimated or swayed by seeing other people’s ballots.
“These
are legitimate concerns,” Hermes said, “but they only extend so far.”
If
voters “want to express what they feel and their experience and the polls, the
First Amendment should protect that,” he said.
Josh
Stearns of Free Press, a media and technology advocacy group, told ProPublica
he did not see much difference between wearing a t-shirt supporting a
candidate, and sharing a photograph of your ballot.
“For
a lot of people, voting is a really important life event,” he said.
“We
can take our kids into the voting booth, but in many places we can’t take a
picture of our ballot.”
Stearns
said that allowing individuals to photograph their ballots might also be an
important way of providing them with a record of their own vote.
Students
interviewed this week by the DePaul University
student paper
had a range of views on posting ballot photos on Instagram,
from approval to disappointment that voting had become “just another thing you
can tweet.”
At
least one state has recently changed its stance on the issue, Hermes said.
Maine repealed its ban on voters
showing their own ballots in 2011.
