As Election Day approaches, we are reminded of an adage as timeless as the republic itself: "Pics or it didn't happen." In our social media-obsessed world, many people document their everyday lives on Facebook or Instagram. For some people, that might even include a "ballot selfie," or a picture of their completed ballot or themselves with the ballot in the voting booth.
North Carolina, like a number of other states, restricts photography within polling places and also prohibits photographing a completed ballot. Statutes like this in North Carolina and other states are based on a desire to protect the privacy of voters and to ensure election integrity. The ban is partially based on the theory that posting a completed ballot could encourage vote-buying or intimidation.
Although North Carolina and some other states are "anti-selfie" when it comes to voting, some voters and constitutional scholars argue that posting ballot selfies is a form of political speech that is protected by the First Amendment. Interestingly, the courts who have addressed this issue agree.
In September 2016, the United States Court of Appeals for the First Circuit (which includes Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico) reviewed a challenge to New Hampshire's ballot selfie prohibition in Rideout v. Gardner. The case arose after one of the plaintiffs, hearing about state investigations arising from ballot selfie postings, posted his own ballot selfie to Facebook with a caption reading, "Come at me, bro." When he faced state government scrutiny for his post, he and several other voters filed a challenge to the anti-ballot selfie law in federal court.
The district court found the New Hampshire statute unconstitutional under the First Amendment. On review, the First Circuit agreed, noting that the state could not identify "a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot." In other words, because there was no evidence to support the state's justification for the law, the court found it to be a violation of picture-taking voters' First Amendment rights, and therefore unconstitutional. On the other hand, the court also found that the ballot selfie "is worth a thousand words" and expressed core political speech such as support for a particular candidate.
Other courts seem persuaded by the analysis in Rideout v. Gardner. For example, just a few days ago, on October 25th, a federal court in Michigan held that state's ballot selfie prohibition is unconstitutional.
Although it does not appear that the constitutionality of North Carolina's "ballot selfie" ban has been tested in court yet, based on how other courts have addressed the issue, it would be unlikely to survive such a challenge. Thomas Jefferson would be proud.
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