Report on Ballot Selfies

SELFIE-DEFENSE TRAINING Understanding and Reforming Laws that Ban Photographing and Sharing Your Ballot MAY 2022 Lawyers for Good Government New Georgia Project

TABLE OF CONTENTS Summary of Findings Report MAP: Laws Permitting Ballot Selfies by State APPENDIX: Ballot Selfie Laws by State

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Ballot Selfies

Summary of Findings • Although a secret ballot has been a cornerstone of American elections for over a century, in early American history, voters cast their votes verbally in public.

• Over time, secret ballots became widespread to prevent voter fraud, coercion, and bribery.

• Most states have laws protecting the secret ballot that were written many decades ago, and have not kept up to date with the development of cell phones and the internet, increased absentee voting, and changes regarding how people engage with the election process.

• Taking and posting a “ballot selfie” on social media is a popular and effective way to encourage people to vote, especially younger people.

• Many states prohibit taking photos at polling locations, in order to protect privacy and limit disruptions, but these laws do not always address whether taking a “ballot selfie” is legal or illegal.

• Advocacy organizations are concerned that laws prohibiting ballot selfies are tools of voter suppression, and another way to criminalize ordinary behavior.

• Courts have recognized a strong First Amendment right to take a ballot selfie, as protected political speech.

• Today, ballot selfies are legal in 24 states, and unlawful in 13 states. Five states have laws prohibiting ballot selfies at polling locations, but not when casting a mail-in or absentee ballot. Ten states have laws governing ballot selfies that are unclear.

• Three states, New Hampshire, Indiana, and Georgia, have recently passed laws banning ballot selfies that courts have either struck down, or barred from being enforced.

• States should update their laws to explicitly allow voters the right to take a ballot selfie, and prevent voter fraud and bribery without curtailing free speech.

Ballot Selfies

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Report For over a century, the right to cast a secret ballot has been a cornerstone of the American system of governance. In the early years of our history, instead of voting in private, the white male property owners who were eligible to vote did so by voicing their chosen candidate’s name out loud at the local courthouse.1 The first paper ballots arrived in the early nineteenth century, but it was not until the end of the century that secret ballots became a widespread practice.

One of the primary reasons for adopting a secret ballot was to prevent coercion, bribery, and vote-buying. If voters cast their ballots in private, they would have no proof of their vote to show someone who attempted to bribe them. Reformers attest that a secret ballot is the most reliable way to prevent this type of election fraud.2 Every election cycle brings questions about “secret” voters who will vote in private for a different candidate who they are unwilling to support publicly.3 Research shows that people may feel coerced to vote differently if they know or think their ballot will not remain private,4 and before the 2020 election, workers feared that their em-

ployer was trying to coerce their vote.5 Choosing to keep a ballot secret protects against harassment and intimidation at the polling location, workplace, and online. Voters who wish to show that they voted and reveal their choice of candidates have many options to do so. But what if someone wants to take a “ballot selfie” while voting, and share an image of their ballot online?

A ballot selfie is when a person takes a photo of themselves holding their marked ballot, and usually uploads the photo to a social media account to show friends that they voted, and for whom they voted. Federal law does not prohibit ballot selfies, and leaves most elections’ decisions up to the states. All states 5 ABC News, “Florida company’s president warns employees their jobs could be in danger if Trump loses election,” Oct. 19, 2020, https://abc13.com/donaldtrump-layoffs-pay-stub-election/7154014/

1 Dave Roos, “How Americans Have Voted Through History: From Voices to Screens,” History, Nov. 2, 2020, https://www.history.com/news/votingelections-ballots-electronic 2 James D’Angelo and Brent Ranalli, The Congressional Research Institute, “How the Secret Ballot Ended the Gilded Age…And Obsoleted the Glassglobe Icon of Democracy,” Jan. 26, 2022, https://www. congressionalresearch.org/SecretBallot.html 3 Jeremy W. Peters, “‘Hidden’ Trump Voters Exist. But How Much Impact Will They Have?” The New York Times, Aug. 16, 2020, https://www.nytimes. com/2020/08/16/us/politics/trump-polls.html 4 Seth J. Hill, Gregory A. Huber, & Conor M. Dowling, YouGovAmerica, “Does A Secret Ballot Protect Individuals From Political Advocacy In The Workplace?”

Dec. 5, 2012, https://today.yougov.com/topics/politics/ articles-reports/2012/12/05/does-secret-ballot-protectindividuals-political-a

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have laws regulating conduct at polling locations, and 44 states have constitutional provisions that guarantee secrecy in voting.6 Many states prohibit taking photos at the polling location in order to protect people’s privacy and limit disruptions at the polls, although those restrictions do not apply to voters photographing their mail-in or absentee ballot, and may become less applicable as people increasingly are able to vote by mail.

Most of the laws governing ballot secrecy were written long before cell phones and the internet existed, and allowing for ballot selfies may be an effective way of getting out the vote and motivating people to perform their civic duty. For many younger people, taking selfies and posting images online are how they engage with the political process. Because elections have become increasingly polarized and contentious, young voters and celebrities they follow want to show people how they voted and encourage others to vote also.7 Especially for young people, encouragement to vote from friends is more effective than advertisements.8 Additionally, as more states work to suppress the vote 6 Caitriona Fitzgerald, Pamela Smith, & Susannah Goodman, “The Secret Ballot At Risk: Recommendations for Protecting Democracy,” Aug. 18, 2016, https://www.secretballotatrisk.org/Secret-BallotAt-Risk.pdf 7 Christie D’Zurilla, “Will Justin Timberlake’s get-out-the-vote selfie get him in legal hot water?” The Los Angeles Times, Oct. 25, 2016, https://www.latimes. com/entertainment/gossip/la-et-mg-justin-timberlakevoting-booth-selfie-20161025-snap-htmlstory.html 8 Elizabeth A. Bennion and Melissa R. Michelson, “How to get more college students to vote,” The Washington Post, Sept. 18, 2018, https:// w w w.washingtonpost.com/news/monkey- cage/ wp/2018/09/18/how-to-get-more-young-people-to-vote/

Ballot Selfies

of Black and brown citizens, advocates worry that laws banning ballot selfies are just one more way to criminalize ordinary behavior and discount their votes.9 While there is no federal law, the First Amendment strongly protects against infringement of political speech, so especially with the rise of social media, states have started to rethink just how secret ballots must be.

In recent years, states from Alabama to California have passed laws that legalize taking and posting ballot selfies. Conversely, states like New Hampshire and Georgia, have passed laws outlawing them, only to see them struck down by the court or barred from being enforced. A federal judge ruled New Hampshire’s law was an unconstitutional violation of free speech, especially since the state could not prove there had been specific instances of voter bribery. The decision was upheld on appeal by the First Circuit Court of Appeals.10 A similar ruling was handed down by a federal judge in Indiana,11 and last year, plaintiffs won a preliminary injunction preventing Georgia’s ballot selfie

9 Mary Meisenzahl, “Activists pressure Atlantabased companies like Coca-Cola and Delta to take action against Georgia voting law,” Yahoo!, March 30, 2021, https://money.yahoo.com/activists-pressure-atlantabased-companies-172653305.html 10 National Conference of State Legislators, “Secrecy of the Ballot and Ballot Selfies,” Aug. 19, 2021, https://www.ncsl.org/research/elections-andcampaigns/secrecy-of-the-ballot-and-ballot-selfies. aspx 11 Ind. Civil Liberties Union Found. Inc. v. Ind. Sec’y of State, 229 F. Supp. 3d 917 (S.D. Ind. 2017)

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ban from taking effect.12 Courts are divided, however. In 2017, a federal court upheld New York’s ban on photographing and displaying marked ballots,13 and in 2000, an appeals court in Illinois held the same.14 Regardless of constitutionality, ballot selfie bans are an archaic effort to prevent ballot fraud, and legal challenges often prevail, because there is no 12 NPR, “Judge Blocks Georgia’s New Ban on Photographing A Filled-Out Ballot,” Aug. 23, 2021, https://www.npr.org/2021/08/23/1030524354/judgeblocks-georgia-ban-ballot-photos 13 Silberberg v. Bd. of Elections of N.Y., 272 F. Supp.

3d 454 (S.D.N.Y. 2017) 14 Josh Numainville, “Panel rebuffs challenge to Illinois law criminalizing ballot selfies,” WestLaw Today, Dec. 18, 2020, https://today.westlaw.com/ Document/I4d8565ef416211ebbea4f0dc9fb69570/ Vi e w/ Fu l lTe x t . h t m l ? c o n t e x t D a t a = (s c .

Default)&transitionType=Default&firstPage=true

proof of widespread vote buying.

Today, ballot selfies are legal in twenty-eight states. Five additional states have laws prohibiting ballot selfies at polling locations, but not when submitting an absentee ballot. Six states have laws that are unclear. And thirteen states prohibit all ballot selfies.

There are minor distinctions and exceptions to some of these laws also. In New Mexico, ballot selfies are legal, but a person may not show the selfie to anyone while inside the polling location. In Delaware, there is only a policy against cell phone use at the polls, but no state law prohibiting it. In Oklahoma, a person is free to take a ballot selfie, however they must wait until they are outside the polling location to post it online. And Alaska state law prohibits ballot selfies, however

Laws Permitting Ballot Selfies by State

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Ballot Selfies

Anchorage recently passed a local ordinance allowing selfies of municipal ballots.15

person from showing a “marked ballot to any person.”24

There are also states where the law is unclear and should be updated. In Louisiana, a former Secretary of State has said that ballot selfies are legal,16 but current state law prohibits a voter from “allow[ing] a ballot to be seen.”17 In Minnesota, it is legal to take a ballot selfie, but not to show it to others.18 Pennsylvania, similarly, prohibits a voter from allowing their ballot to be seen,19 but the Pennsylvania Department of State informs that selfies are legal, and counties may allow or restrict the use of cell phones at polling locations.20 Vermont’s Secretary of State has said that ballot selfies are legal,21 but state law prohibits a person from allowing their ballot to be seen “with an apparent intention of letting it be known” how they are about to vote.22 In Wisconsin, a representative of the State Election Commission has said it is okay to take a ballot selfie,23 although state law prevents a

Although Michigan still has a law on the books banning ballot selfies, a 2019 court settlement stipulated that voters may photograph their ballot in the voting booth, and share the image once they are at least 100 feet away from the polling location.25 And in Montana, a 1904 District Court case specifically held that Montanans may waive their right to ballot secrecy, which only further underscores a ballot selfie right in that state.26

15 Matt Leseman, “‘Ballot Selfies’ now legal in Anchorage,” Alaska’s News Source, Feb. 15, 2020, https:// www.alaskasnewssource.com/content/news/BallotSelfies-now-legal-in-Anchorage-567917671.html 16 Josh Cornfield, Alanna Durkin Richer, & Kristen Wyatt, Associated Press, “Want to take a selfie in the voting booth? In Louisiana, you can do that,” The Advocate, Oct. 23, 2016, https://www.theadvocate.com/ baton_rouge/news/politics/elections/article_ac8a72e499a4-11e6-8eb2-b77811565024.html 17 La. Stat. § 18:1461.7(A)(2) 18 Minn. Stat. § 204C.17 19 25 Pa. Stat. § 3530 20 Kaitlin Murphy, Pennsylvania Department of State, “Top Five Things To Know About Voting,” Oct. 23, 2018, https://www.dos.pa.gov/SimplyStated/Pages/ Article.aspx?post=10 21 Bob Kinzel, “Can You Take A ‘Ballot Selfie’ In Vermont? The Secretary Of State Says Yes,” Vermont Public Radio, Nov. 7, 2016, https://www.vpr.org/vprnews/2016-11-07/can-you-take-a-ballot-self ie-invermont-the-secretary-of-state-says-yes#stream/0 22 Vt. Stat. tit. 17, § 1972 23 AJ Willingham, Andrea Diaz, Doug Criss, & Christina Maxouris, “Here’s what each US state says about taking ballot selfies,” CNN, Nov. 2, 2018, https:// www.cnn.com/2018/11/02/us/taking-selfies-whenvoting-laws-in-states-trnd/index.html

As the New Hampshire court stated, “The ballot-selfie prohibition is like ‘burn[ing down] the house to roast the pig.’”27

Ballot Selfies

Although it would be rare for a state to actually arrest and charge a person solely for taking a ballot selfie, it is important for states to update their laws to make them clear, understood, and enforceable. They should narrowly tailor the language to apply only when a selfie is evidence of an actual crime, and investigate coercion, bribery, and other elections’ crimes without undermining protected political speech.

Circuit Court Judge Myrna Perez, formerly the director of the Brennan Center’s voting rights and elections program, has recommended that these laws be “revisited and revamped as societal norms and concerns evolve.”28 State-based advocacy organizations 24 Wis. Stat. § 12.13(1)(f) 25 Michigan Secretary of State Jocelyn Benson, “Michigan secretary of state settles ‘ballot selfie’ case,” May 8, 2019, https://www.michigan.gov/sos/resources/ press-releases/2019/05/08/michigan-secretary-of-statesettles-ballot-selfie-case 26 Lane v. Bailey, 29 Mont. 548 (1904) 27 Rideout v. Gardner, 838 F.3d 65, 75 (1st Cir. 2016) (citing Butler v. Michigan, 352 U.S. 380, 383 (1957) 28 Christopher Cicchiello and Kerry Breen, “Could your ballot selfie get you in trouble with the law?

In some states, yes,” Today, Oct. 27, 2020, https://www. today.com/tmrw/it-illegal-take-ballot-selfie-it-dependsstate-laws-t196190

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nationwide, including the Coalition for Good Governance in Georgia,29 and ACLU affiliates in New Hampshire,30 Indiana,31 and California,32 have successfully challenged ballot selfie bans in court.33 Lawyers for Good Government drafted a model policy to ensure that all voters will be able to legally take and post a ballot selfie to social media, based on current laws in Alabama, California, Colorado, Hawaii, and Oklahoma.

The model policy may be found here: L4GG. org/ModelPolicyOnBallotSelfies.

29 Mark Niesse, “Judge strikes down part of Georgia voting law that banned photography,” The Atlanta Journal-Constitution, Aug. 20, 2021, https:// www.ajc.com/politics/judge-strikes-down-par tof-georgia-voting-law-that-banned-photography/ JCMUOR5AVJDSPNEPIZNU3PNESA/ 30 ACLU of New Hampshire, “U.S. Supreme Court Allows First Circuit Decision Striking Down New Hampshire’s ‘Ballot Selfie’ Ban to Stand,” Apr. 3, 2017, https://www.aclu-nh.org/en/press-releases/ussupreme-court-allows-first-circuit-decision-strikingdown-new-hampshires-ballot 31 ACLU of Indiana, “ACLU of Indiana Wins Challenge to State’s Ballot Photo Law,” Oct. 20, 2015, https://www.aclu.org/press-releases/aclu-indiana-winschallenge-states-ballot-photo-law 32 The ACLU Foundation of Northern California, “ACLU Foundations of California v. Alex Padilla (Ballot Selfies), Oct. 31, 2016, https://www.aclunc.org/ourwork/legal-docket/aclu-foundations-california-v-alexpadilla-ballot-selfies 33 Please note that, at the time of publication, the model policy is endorsed by Lawyers for Good Government and the New Georgia Project, but has not been endorsed by any of the organizations described above. It is, however, drafted to further the same goals.

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Ballot Selfies

APPENDIX: Ballot Selfie Laws by State The following appendix is a survey of the laws that govern ballot selfies. It includes citations along with hyperlinks to where the relevant provisions reside in the law, to show how simple it can be to change these laws to prevent the criminalization of taking a ballot selfie. A motivated advocate in a state could encourage a legislator to introduce such a bill.

Arizona

Where possible, we provide citations and hyperlinks to relevant provisions of each state’s code. However, in some states, we answer that voters may take and post ballot selfies without providing a citation to a state’s code.

We had a team of at least two volunteer pro bono attorneys check the relevant provision of the relevant provisions of each state’s code, and two additional L4GG staff attorneys to check the relevant provisions of each state’s code, and concluded that it was unlikely that there were laws banning ballot selfies in that state. After having a minimum of four attorneys check each state’s code, we referenced several secondary sources to confirm our conclusions.

May a person take and post a ballot selfie in Arkansas? Yes.

The information provided in this report does not and is not intended to constitute legal advice.

Alabama May a person take and post a ballot selfie in Alabama? Yes. See Ala. Code § 17-9-50.1.

Alaska

May a person take and post a ballot selfie in Arizona? Absentee ballots only. See Ariz. Rev. Stat. § 16-515(G).

Arkansas

California May a person take and post a ballot selfie in California? Yes. See Cal. Elec. Code § 14291(b).

Colorado May a person take and post a ballot selfie in Colorado? Yes. See Colo. Rev. Stat. § 1-13712(1)(b).

Connecticut Yes, there is no state law, and Secretary of State Denise Merrill has gone on the record stating they are legal.

Delaware May a person take and post a ballot selfie in Delaware? Unclear, but at least absentee ballots. There is a policy against cell phone use in the polling place.

May a person take and post a ballot selfie in Alaska? No. See Alaska Stat. § 15.15.280. However, Anchorage residents may take a selfie with a municipal ballot. See Anchorage, AK Code of Ordinances § 28.50.170.

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District of Columbia

Indiana

May a person take and post a ballot selfie in the District of Columbia? Unclear. Although D.C. Code § 1-1001.09(a) requires voting to be secret, it has been reported that the DC Board of Elections does not enforce it against ballot selfies.

May a person take and post a ballot selfie in Indiana? Yes. See Ind. Code § 3-11-11-16, but a federal court issued an injunction barring this law from being enforced. See Ind. Civil Liberties Union Found. Inc. v. Ind. Sec’y of State, 229 F. Supp. 3d 917 (S.D. Ind. 2017).

Florida

Iowa

May a person take and post a ballot selfie in Florida? No. See Fla. Stat. § 104.20.

May a person take and post a ballot selfie in Iowa? Yes. See Iowa Code § 49.88(1).

Georgia

Kansas

May a person take and post a ballot selfie in Georgia? Yes, at the time of publication, but that could change. Although Ga. Code § 212-568.2 (a) prohibits photography of ballots, at the time of publication there is ongoing litigation about the legality of that law, and a federal court has ordered that it cannot be enforced as the trial proceeds. See Coalition for Good Governance v. Kemp, Civil Action No. 1:21-cv-02070-JPB (N.D. Ga. Jul. 7, 2021).

May a person take and post a ballot selfie in Kansas? Yes.

Hawaii

Unclear. Former Secretary of State Tom Schedler has gone on the record stating they are legal. Someone wishing to challenge a ballot selfie could argue it is banned by LA Rev Stat § 18:1461.7, but that law does not explicitly prohibit photography of ballots and there is no record of enforcement.

May a person take and post a ballot selfie in Hawaii? Yes. See Haw. Rev. Stat. § 11-121.

Idaho

Kentucky May a person take and post a ballot selfie in Kentucky? Yes.

Louisiana

May a person take and post a ballot selfie in Idaho? Yes.

Maine

Illinois

May a person take and post a ballot selfie in Maine? Yes.

May a person take and post a ballot selfie in Illinois? No. See 10 Ill. Comp. Stat. 5/29-9.

Maryland May a person take and post a ballot selfie in Maryland? Absentee ballots only. See Md. Code Regs. 33.07.04.02.

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Ballot Selfies

Massachusetts

Montana

May a person take and post a ballot selfie in Massachusetts? No. See Mass. Gen. Laws ch.

56, § 25.

May a person take and post a ballot selfie in Montana? Yes, although Mont. Code § 13-1102 provides that “All elections shall be by secret ballot”; Montanans have the right to waive their right to secrecy. Lane v. Bailey, 29 Mont. 548 (1904).

Michigan May a person take and post a ballot selfie in Michigan? Yes. Although there is a law on the books that bans ballot selfies, MI Comp L § 168.579, a 2019 court settlement stipulated that voters may photograph their ballot in the voting booth, and share the image once they are at least 100 feet away from the polling location.

Minnesota May a person take and post a ballot selfie in Minnesota? Unclear. Although Minn. Stat. § 204C.17 prohibits a voter from showing their market ballot to another person, it has been reported the Secretary of State’s website states that ballot selfies are allowed.

Mississippi May a person take and post a ballot selfie in Mississippi? No. Miss. Code § 97-13-45 prohibits a voter from allowing their ballot “to be seen by any person.” The former Attorney General has enforced that law as prohibiting photography of ballots. According to a news source, two teens voting for their first time were fined for taking selfies in 2008 and 2012.

Missouri May a person take and post a ballot selfie in Missouri? No. See Mo. Rev. Stat. § 115.637(14).

Ballot Selfies

Nebraska May a person take and post a ballot selfie in Nebraska? Yes. See Neb. Rev. Stat. § 321527(4).

Nevada May a person take and post a ballot selfie in Nevada? No. See Nev. Rev. Stat. § 293.730(1) (e).

New Hampshire May a person take and post a ballot selfie in New Hampshire? Yes. Although N.H. Rev. Stat. § 659:35 (I) bans ballot selfies, a federal court struck down the law, barring the state from enforcing it. See Rideout v. Gardner, 838 F.3d 65 (1st Cir. 2016).

New Jersey No. See N.J. Rev. Stat. § 19:34-7, stating no person shall “show his ballot.” However, according to a 2018 media report, Secretary of State spokesperson Trudi Gilfillian said poll workers may simply ask people to stop if they are found taking a selfie in the booth, and do not enforce the law if they find images posted on social media.

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New Mexico

Pennsylvania

Yes. Although NM Stat § 1-12-57 states a voter “shall not show it to any person in the polling place in such a way as to reveal its contents,” the Secretary of State’s office made a 2018 statement that voters can take pictures of themselves and their ballots.

May a person take and post a ballot selfie in Pennsylvania? Unclear, but at least absentee ballots. See 25 Pa. Stat. § 3530, prohibiting a voter from allowing their ballot to be seen, but the Pennsylvania Department of State advises that selfies are legal in counties that allow people to use cell phones at polling locations.

New York May a person take and post a ballot selfie in New York? No. See N.Y. Elec. Law § 17-130(10).

North Carolina May a person take and post a ballot selfie in North Carolina? No. See N.C. Gen. Stat. § 163166.3(c).

North Dakota May a person take and post a ballot selfie in North Dakota? Yes.

Ohio May a person take and post a ballot selfie in Ohio? No. See Ohio Rev. Code § 3599.20.

Oklahoma May a person take and post a ballot selfie in Oklahoma? Yes. See Okla. Stat. tit. 26, § 7-109.

Oregon May a person take and post a ballot selfie in Oregon? Yes.

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Puerto Rico May a person take and post a ballot selfie in Puerto Rico? Unclear. P.R. Laws, tit. 16, § 4726 (3) requires voters to “mark the[ir] ballot in ... [a] private and secret manner”. Some states like Mississippi consider provisions like this to be a blanket ban on ballot selfies, while others like Louisiana read provisions like this to allow ballot selfies. L4GG reached out to the Puerto Rican State Election Commission for official comment several times over a period of two months before the publication of this report, but received no response.

Additionally, P.R. Laws, tit. 16, § 4823 (6) prohibits a voter from “disclos[ing] the contents of a ballot already marked by him/her…to any person before depositing it in the ballot box,” it also would not be be advisable to post a ballot selfie online before depositing the ballot in a ballot box.

Rhode Island May a person take and post a ballot selfie in Rhode Island? Yes.

South Carolina May a person take and post a ballot selfie in South Carolina? No. See S.C. Code § 7-25-100(A) (1).

Ballot Selfies

South Dakota

West Virginia

May a person take and post a ballot selfie in South Dakota? No. See S.D. Codified Laws § 12-18-27.

May a person take and post a ballot selfie in West Virginia? Absentee ballots only. See W. Va. Code § 3-4A-23.

Tennessee

Wisconsin

May a person take and post a ballot selfie in Tennessee? Absentee ballots only. See Tenn.

Code § 2-7-142(b).

May a person take and post a ballot selfie in Wisconsin? Unclear. Elections officials have said ballot selfies are legal, but Wis. Stat. § 12.13(1)(f) prohibits a voter from showing their marked ballot to another person.

Texas May a person take and post a ballot selfie in Texas? Absentee ballots only. See Tex. Elec.

Code 61.014(a).

Wyoming

May a person take and post a ballot selfie in Wyoming? Yes.

Utah May a person take and post a ballot selfie in Utah? Yes. See Utah Code § 20A-3a-504(1)(a).

Vermont May a person take and post a ballot selfie in Vermont? Yes. While voters are prohibited from allowing someone to see their ballot with the intention of showing how they are about to vote, there are no laws that apply once the ballot has been filled out. See Vt. Stat. tit. 17, § 1972.

Virginia May a person take and post a ballot selfie in Virginia? Yes.

Washington May a person take and post a ballot selfie in Washington? Yes.

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Report Authored by Joe Spielberger and Mika Fernandez