A Selfie in the Voting Booth? We’ve Got a Felony For That

Think twice before you post
that grinning voting booth selfie followed by the #turnoutforwhat
hashtag, because you may be commiting a felony. 

As reported by the Peoria
Journal Star, “Section 29-9 of
(Illinois‘) election code essentially says that you
can‘t show other people who you‘re voting
for, even in a photo after the fact.“ The law has
been on the books since 1974, passed by the legislature as a means
of
stifling “vote-buying“ schemes,
intimidation, and other forms of tampering. Though local election
officials told the Journal Star they had never heard of
the law being enforced and the Peoria County State‘s
Attorney said he would
be “unlikely“ to prosecute a
voting booth selfie violator, the code remains a Class 4 felony on
the state books.

It’s not just Illinois. Dozens of states have restrictions
on photographing your ballot. The Digital Media Law
Project produced a
thorough examination of ballot disclosure laws in 2012, which
they described as a “First Amendment Anomaly”:

As reflected in our new guide, many states have statutes that
prohibit the display of one’s own marked ballot to others. A small
number of these states only prohibit disclosure of one’s ballot in
the voting room or prior to submission of the ballot, but most
impose a flat prohibition on disclosure backed up by criminal
penalties or cancellation of the vote in question. These statutes
by their explicit terms appear to ban sharing of a photograph of
one’s ballot even after the election is over.

Now, we can debate the wisdom of a voter openly declaring the
candidate for whom he or she voted. There are sound reasons for a
person to keep his or her ultimate selection secret, whether to
prevent intimidation at the polling place or retribution by
employers or others after the fact. It is easy to imagine
situations in which the thoughtless posting of a marked ballot on
Facebook could result in negative consequences, as with the posting
of so many other ill-advised Facebook photos.

And yet, the First Amendment’s protection is at its peak in the
realm of speech on political issues. Can a law prohibiting a voter
from disclosing his or her own marked ballot be constitutional?

Just this week, the
American Civil Liberties Union (ACLU) filed a lawsuit against
the “Live Free or Die” state of New Hampshire for updating its
existing ban on photographing a marked ballot to specifically
prohibit “taking a digital image or photograph of his or her marked
ballot and distributing or sharing the image via social media,”
punishable by up to a $1,000 fine.

Unlike in Illinois, the law is being enforced. According to

Boston.com, at least 3 citizens of the Granite State have been
investigated by the state’s attorney general for posting their
ballot to social media, including a police officer who voted for
his dead dog as a write-in candidate for the Senate. In an act
of defiant rebellion against his own state’s law, State Rep. Leon H. Rideout
(R-NH), a co-plaintiff in the ACLU’s lawsuit, tweeted
his marked-up ballot during this past September’s Republican
primary election “to
make a statement.” To date, he has not been fined.

So be careful out there today when bragging about fulfilling
your civic duty, or at least check the Digital Media Project’s
helpful guide to see if your state has laws curtailing
post-election political speech. As civil liberties
lawyer and Reason contributor Harvey
Silverglate wrote in his book “Three
Felonies a Day,“ the average American
may regularly and unwittingly
engage in felonious activity, but he/she will
generally not record and publish these petty crimes all over social
media.