Ban on Ballot Selfie Stands

October 19, 2017

Technology has a way of complicating laws that were written back in the day that cannot possibly account for the changes in human progress. Such was New York’s Election Law section 17-130 which was first enacted in 1890. With the advent of camera-enabled cellular devices, we saw a rise in the ballot selfie phenomena during the 2016 election where people where taking a picture of themselves and their ballot at the ballot box. In response, many states began either utilizing laws on the books or passing new restrictions on the use of photography in voting booths and or of actual completed ballots. New York was one of the many states that bans ballot selfies. New York City’s Board passed a policy that would prohibit photography of ballots at polling locations.

That policy and New York’s Election Law section 17-130 were recently found to be reasonable restrictions and not in violation of the Freedom of Speech of the United States by a Federal Judge.

In October 26, 2016 plaintiffs moved the Federal Southern District Court of New York to issue a preliminary injunction against the enforcement of NY Election Law section 17-310(10) and the New York City Board’s policy prohibiting voters from taking pictures of themselves and their ballots in New York City at the ballot site. The Court denied the motion. However, the Court declined to address whether pictures taken of ballots outside of polling locations violated the law due to lack of standing and did not address the legality of NYC’s Board policy.

Subsequently, plaintiffs amended their complaint in December 2016 and April 2017 to challenge the Board policy and State law’s as violating their First Amendment Constitutional rights. In addition, the amended complaints wanted the Court to address the applicability of the Board policy and section 17-310 to situations where the ballot was photographed outside of polling stations such as in an absentee ballot circumstance.

At issue was whether section 17-130(10) which makes it a misdemeanor for anyone who “shows his ballot after it is prepared for voting, to any person so as to reveal the contents, or so solicits a voter to show the same” and NYC’s policy preventing someone from taking a picture of themselves and their ballot violates the United States Constitution’s First Amendment Freedom of Speech. The Court did recognize the fact that pictures taken of ballots is “indisputably a potent form of political speech, presumptively entitled to protection under the First Amendment.” However, the Court found that the prohibition was not content-based, narrowly tailored, and addressed a significant state interest.

The First Amendment states in relevant part that “Congress shall make no law . . . abridging the freedom of speech.” The First Amendment limits the ability of the government to regulate speech on government controlled or owned property. It applies to the individual states via the Fourteenth Amendment.

The Court applied strict scrutiny to the case. It explained that “[g]overnment restriction of speech based on the content of that speech in either a traditional public forum or a designated public form is subject to strict scrutiny.” The speech can be regulated either by a particular subject matter or by its function or purpose. The Court further explained that such restrictions are presumptively unconstitutional and will only survive strict scrutiny if the government has a narrowly tailored approach that serves a compelling governmental interest. The Court recognized that the government can place time, place, and manner restrictions on content-neutral protected speech if they survive the requirements for strict scrutiny. Moreover, the government’s restrictions garner more latitude in a limited public forum. The Court defines a public limited forum as “public property which is not by tradition or designation a forum for public communication.” In a  limited public forum the government can impose broad restrictions but cannot be selective if it allows particular types of activities and the restrictions need to be viewpoint neutral and reasonable.

The Court found that the section 17-130(10) and the Board policy satisfy strict scrutiny. The defendants argued that the restrictions in place to prevent photographs were reasonably tailored and addressed an important state interest. Beginning with a compelling state interest, the Court agreed with the defendants in finding that the state does have an interest is preventing election fraud and regulating the election process. In addition, the Court stated the state has an interest in preventing voter intimidation and protection. The respondents argue that the Board policy and section 17-130(10) help with satisfying both interests and keep with the established norm of creating a campaign-free zone around polling locations. The Court explains that:

[a] campaign-free zone around the polling site reinforces secrecy in the voting booth while also addressing concerns regarding vote buying and voter intimidation in additional ways; it does away with a potential marketplace for the sale of votes within the immediate vicinity of the polling site and makes it more difficult for individuals to intimidate voters who are approaching the polling site or awing in line.

It found that restricting the zone around the voting area is the only way of limiting access to the voter and preserving the secrecy of the ballot. The Court does mention that just because there is no evidence of wide spread voter buying and voter intimidation does not mean that the state loses its authority of a compelling interest. The Court refers to Burson vs. Freemon, a US Supreme Court case, to find that the state does have an interest in maintaining the secrecy of the ballot and upholding the integrity of the election process. In Burson, the Supreme Court stated:

In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.

The Court also found both the policy and the state law to be narrowly tailored to address the state’s compelling interests. In order to be narrowly tailored, the restriction must be the “least restrictive alternative that can be used to achieve that goal.” The Court reasons that by preventing people from taking pictures of marked ballots they are preventing potential vote buyers and intimidators from targeting individuals. Limiting photography would make these interests more difficult. The Court stated “history and common sense teach that prohibiting vote buying and voter intimidation are unlikely to be a particularly effective means to combat these evils so long as the perpetrators may verify their target’s votes.” The Court concludes with saying the Plaintiffs failed to put forth any alternatives that would be as effective and that it was not aware of any alternatives that would achieve the same ends. “[A]ny law prohibiting only the posting to social media of photographs of marked ballots for fraudulent purposes would allow the posting of marked ballots in general to proliferate, thus giving cover to those who would use these photographs to fraudulently alter elections.”

So next time you see a “no photography allowed” sign in a voting booth you will know that such a sign will likely withstand any First Amendment challenges with regards to violating your right to free speech.

You can read the entire opinion on Westlaw: Silberberg v. Board of Elections of New York, No. 16-CV-8336 (PKC), 2017 WL 4326539, (S.D.N.Y. Sept. 28, 2017).

Image Source: Reuters Blog (REUTERS/Rick Wilking)

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