Ballot Selfie Bans Are An Unconstitutional Mess
Novermber 2, 2016 (Fault Lines) — Sometimes, people like to take pictures of themselves doing stupid things. Doing a keg stand. Holding a tiger. Eating at Arby’s. For the most part, while governments can ban doing the stupid thing, they can’t ban photographing it. Why? Because photography, like flag burning, is core expressive conduct protected by the First Amendment.
Yet strangely, many state governments think they’ve found an exception. While voting is perfectly legal, many states wish to make it illegal to photograph oneself voting, fearing that citizens might auction off their vote to the highest bidder or fear that surreptitious photography will undermine the anonymity of their voting decision.
The only problem is that ballot selfies, even when created by celebrities, are core political speech. You could express your support for a candidate through a yard sign, sure. Or by attending rallies. Or by donating to a campaign. But what’s a clearer way to express support than snapping a photo of your smiling face and thumbs up sign next to that bubbled in little circle?
When courts consider the issue, they generally side with the selfie-snappers. The First Circuit Court of Appeals held, most memorably, that “ballot-selfie prohibition is like ‘burn[ing down] the house to roast the pig,’ while other courts have issued injunctions preventing states from enforcing the bans.
So is there anyone who thinks that the ballot selfie bans are a good idea? Prosecutors, mostly. Denver’s District Attorney and chief buzz-kill, Mitch Morrissey, recently warned voters that showing other people their completed ballots could result in prosecution. And Tennessee felt comfortable flexing its prosecutorial muscles when Justin Timberlake shared his ballot as part of a “get out the vote” effort. Timberlake responded, disappointingly, by meekly slipping his photo off of the internet.
The most common justification for this is that photographing ballots or showing people pictures are some of the only sure-fire ways of certifying that you’ve voted a particular way. So, if some nefarious character decided to pay you $30 to vote for him for Mayor of Newark, New Jersey, the ballot selfie would be the only way for him to know that he got his money’s worth.
The problem with this argument is that the ballot selfie is not a particularly surefire way to actually check on how a person voted. After all, ballots aren’t personalized. Simply having a friend take a picture of his own ballot, and claiming it as your own would be enough to fool even malicious would-be political servants. And to the extent that the ballot selfie serves to assist voter fraud by proving that you sold your vote, it also tends to undermine voter fraud by, y’know, proving to the police and any interested prosecutor that you sold your vote and documented it. Which is already a crime.
Also, this argument suggests that taking a ballot selfie isn’t innately wrong, it’s just one of those things that could potentially further some crime down the line. That puts it in line with such classic “malum prohibitum” crimes as loitering (to prevent burglaries), prostitution (to prevent child sex trafficking) and structuring (to prevent money laundering). Such laws tend to be among the most ridiculous, because it takes three or four logical steps and some empirical evidence before they even begin to make sense.
It doesn’t help that there doesn’t seem to be exactly an epidemic of vote buying across the country. In the New Hampshire decision, the best the government could muster was the lame argument that the ballot selfie ban acted “prophylactically” to prevent voter fraud that would become possible with “new technologies.” Not exactly compelling stuff.
The ACLU, in moving to strike down these laws across the country, has apparently spotted an issue more tantalizing than okaying “revenge porn” laws and opposing mens rea reform—one of the increasingly rare bits of modern litigation that can be agreed upon by social justice warriors and alt-rightists alike.
It’s been exciting to see the wave of coverage over this issue because it reveals something that people don’t commonly fret over. We have too many criminal laws, and we are far too quick to resort to criminal sentencing to resolve minor (possibly nonexistent) problems. In an era with sky-high rates of incarceration and a public that is still 45% willing to believe that our criminal justice system is not tough enough on those who get caught within its gears, it’s refreshing to see public opinion aligned against yet another unnecessary law… at least until some child with a cute name is somehow killed in a ballot selfie accident. Then all bets are off.