New Hampshire resident Andrew Langlois was frustrated with the candidate choices for the primary election in 2014. So instead of choosing one of the listed options, he wrote in the name Akira, his dog who had recently died.
Langlois snapped a picture of the marked ballot and posted it to Facebook. Little did he know, he just breached New Hampshire’s law banning “ballot selfies” and would soon be subject to an investigation that would reach a federal court. Langlois was one of three plaintiffs in the case due to posting photos of their marked ballots on social media.
“We were really concerned by these investigations and worked with them to challenge the law and ultimately were successful,” Gilles Bissonnette, the legal director for New Hampshire’s American Civil Liberties Union who represented the plaintiffs, told TMRW. “Because, at its core, why this law violated the First Amendment is it deemed illegal peaceful, political speech, which really goes to the heart of our democracy. Speech that had no nexus to criminality at all.”
With a divisive election ahead and no end to the coronavirus pandemic in sight, a record number of people are voting by mail. And for those filling out their ballots at home, a quick picture is an easy way to show participation in the process. However, more than 15 states — including New York, Florida and New Jersey — have a law that outright bans “ballot selfies.”
When Whoopi Goldberg gave a tutorial on mail-in-ballots in New York State during a recent Instagram video, she was careful to blur out her marked ballot. Had she revealed the ballot itself, she could be charged with a misdemeanor.
Bissonnette and Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice at New York University Law School, explained that these laws were put in place to curb the practice of vote buying and voter coercion. Technically, a photo of a marked ballot can be “used as a receipt to help consummate a vote-buying transaction,” Bissonnette said.
The New Hampshire court's decision argued that the law was overly broad since it was calling political speech into question.
“In an effort to get at a small subset of criminal behavior, you're banning a lot of peaceful, innocent speech that goes to the core of a functioning democracy,” said Bissonnette, who was lead counsel on the case. “So that's really what the court meant is that you're taking a sledgehammer to swat a fly.”
Laws need to be “revisited and revamped as societal norms and concerns evolve.”
When states debate regulating ballot selfies, Pérez suggested lawmakers be aware that laws need to be “revisited and revamped as societal norms and concerns evolve.”
The ballot-selfie laws are no laughing matter in states where it is deemed illegal. Such a violation can even lead to a $1,000 fine in certain states. Illinois has one of the strictest laws in the country; someone can face one to three years in prison if they reveal their ballot to another voter.
Lonna Atkeson, a professor at the University of New Mexico and national expert in the field of election admission, said the debate over ballot selfies is between First Amendment rights of individuals to have free speech and privacy rights.
She voiced her concern that ballot selfies could lead to another problem in which a voter “feels pressured” to vote in line with their peers.
"Let's say (people) start sharing ballots on Facebook or other social media. That may be ... social pressure for other people to do the same, and they may not want to," Atkeson said. "What if your employer is (sharing their ballot)? Do you have an obligation to start doing that? And what if you didn't vote for the guy your employer did, but you feel pressured to show your ballot and show that you were in solidarity with your friends or coworkers or employer?"
Atkeson said some states grant individuals the freedom to share photos depicting the sealed outer envelope, which she views as a compromise between both sides of the issue. Recently, celebrities like Selma Hayek, Reese Witherspoon and Zoë Kravitz posted a selfie with their closed envelopes.
But marked ballot selfies aren't the only photos that can get people in trouble with the law. Atkeson said that taking photos in a voting precinct is disruptive to the process, especially if someone begins filming others in the building. In a place like Arizona, where ballot selfies are legal, it's illegal to take photos within 75 feet of a polling location.
Pérez said that voters should be aware of their state's rules on ballot selfies before taking a picture and offered some alternatives. If the goal is to encourage friends to engage in the voting process, Pérez suggested taking a photo with an “I voted” sticker or capturing a photo of the outer envelope or an empty ballot.
“It doesn't have to be a picture of your ballot or your vote, right,” Pérez said. “And I think that's what's important. There are many ways to mobilize a network for voting that doesn't have to be an invasion of someone's privacy.”
“In an effort to get at a small subset of criminal behavior ... you're taking a sledgehammer to swat a fly.”
Bissonnette feels strongly that citizens should feel free to post a picture of a marked ballot and that it should be a right protected nationwide, like in the New Hampshire precedent. Until then, he encouraged people to share who they voted for in the text of social media posts.
“For many people, they want to convey a message through that picture documenting the very ballot they used to articulate and give their voice to our democracy,” Bissonnette said. “If that's how people want to convey that message, we think they should have the right to do it.”
CORRECTION (Oct. 27, 2020, 11:17 p.m.): An earlier version of this article misstated the name of Andrew Langlois' late dog as Anika. His dog's name was Akira.