Secrecy of the Ballot and Ballot Selfies

2/27/2020

Overview

I voted stickersSince 2014, the issue of “ballot selfies” has been a hot one in legislatures.

Should voters be able to photograph their ballots and post them on social media—or not?

The right to cast a secret ballot has been a mainstay of the U.S. system of governance for the last hundred years. Voting in secret, as opposed to a voice vote that was more common in the early part of U.S. history, guards against coercion and bribery. And yet, “ballot selfies,” where voters take a picture of their voted ballots and share them on internet sites, have caused the secrecy issue to resurface.

According to a recent study, 44 states have constitutional provisions that guarantee secrecy in voting, and the remaining states have statutory provisions to do so. In addition to expressly calling for a secret ballot, over time many states have also seen reasons to prohibit or limit the use of cameras in polling places. These have been enacted both to protect the privacy of voters and also to limit disruptions in the polling place.

In the last 10 years, the advent of social media and cell phones with cameras have proved a challenge for state laws on limiting photography in the polling place, in large part because the photos can lead to the disclosure of how an individual voter voted. And that brings up the question of coercion and bribery.

The explosion of social media and “selfie” culture has also challenged the traditional thinking that voters should not disclose how they voted. Many young people, who share everything on social media, find it logical that they should be able to share a photo of their voted ballot with friends and followers. “Get-out-the-vote” organizations also find posting these “ballot selfies” to be a motivating factor for younger people to participate in the voting process.

The competing desires of voters to share ballot selfies, and election officials to maintain an orderly polling place free of opportunities for bribery or coercion, have brought this issue to the desks of state legislators in recent years.

Most prominently, New Hampshire passed a law specifically prohibiting ballot selfies in 2014. Like many states, New Hampshire already prohibited voters from disclosing their marked ballot. The 2014 legislation (HB 366) took it a step further by explicitly prohibiting voters from taking a digital image of a marked ballot and distributing or sharing it on social media.

The law was challenged in federal court and ruled unconstitutional, as it was a violation of the First Amendment right to free speech. The court concluded that the ballot selfie is constitutionally protected political speech that can be restricted only by meeting the highest standard of constitutional scrutiny. The federal district court concluded that because the State of New Hampshire could not prove any specific instances of vote buying, voter coercion, or other frauds linked to ballot selfies, the government did not have a compelling government interest in restricting the acts. Because the ballot selfie was held to be political speech, it therefore commands the same constitutional protection required of other First Amendment rights.

In September of 2016, the United States First Circuit Court of Appeals, based in Boston, heard New Hampshire’s appeal of the lower court ruling. The appeal proved unsuccessful for New Hampshire. The First Circuit upheld the lower court ruling, comparing the New Hampshire law’s means of preventing voter fraud to “burning down the house to roast the pig.”

State Policies on Ballot Selfies

As a result of the ruling on the New Hampshire case and of constituents bringing the issue to their attention, several state legislatures have examined the issue and/or passed legislation in the last few years. Most of these have aimed at permitting ballot selfies, but a few put some limitations on them. Courts have been active in some cases as well.

Examples of states permitting ballot selfies:

  • California enacted AB 1494 (2016) repealing a 125-year old law barring voters from showing people their marked ballots. It specifies that “a voter may voluntarily disclose how he or she voted if that voluntary act does not violate any other law.”
  • Colorado passed HB 1014 (2017) repealing the ban on voters disclosing the contents of their voted ballot.
  • Hawaii lawmakers passed HB 27 (2016) allowing voters to distribute or share a digital image of the voter’s own marked ballot via social media.
  • Nebraska permitted ballot selfies as a provision of LB 874 (2016) that specified a voter may voluntarily photograph his or her ballot after it is marked and reveal the photograph to another person.
  • Oklahoma enacted HB 1259 (2019) to allow disclosure of voted ballots in digital photographs.
  • In Oregon, all voting is done through mail-in ballots, which voters are free to photograph. A state law prohibiting showing a marked ballot to another person was repealed by SB 1515 in 2014.
  • Utah HB 72 (2015) changed the law to allow for individuals to take, share or publish a photograph of the individual’s ballot, but makes it a misdemeanor to take a photograph of someone else’s ballot.

Examples of state policies restricting ballot selfies:

  • Alabama enacted SB 128 (2019) prohibting voters from taking a photograph or otherwise revealing the contents of their voted ballots and making the offense a misdemeanor.
  • Arizona passed SB 1287 (2015) that prohibited photography within a 75-foot limit around polling places, making voting booth ballot selfies illegal.
  • Indiana SB 466 (2015) permitted voters to use cell phones at the polls as long as they as they weren’t disruptive to the process, and also specified that voters could not take a digital image of the voted ballot while in a polling place or distribute or share the image by social media. However, a federal judge barred the state from enforcing the law, reasoning that a photo of one’s ballot is constitutionally protected speech. Ballot selfies were therefore permitted in the 2016 Presidential Election.
  • Pennsylvania law (Penn. State. Tit. 25 § 3530) prohibits someone from allowing his ballot “to be seen by any person with the apparent intention of letting it be known how he is about to vote.” But for the 2016 Presidential Election, Pennsylvania officials released Guidance on Rules in Effect at the Polling Place on Election Day that noted the recent court cases that found a First Amendment right to take ballot selfies and recommended that voters wait until leaving the polling place to post a ballot selfie on social media.
  • Texas law (Tex. Election Code § 61.014) bars wireless communication and recording devices within 100 feet of the polling station, so selfies are not allowed.

For information from additional states see The Associated Press survey of state policies on ballot selfies, conducted prior to the 2016 Presidential Election.

Other Options for Creating Voter Engagement

If one of the goals of posting ballot selfies is to foster vote engagement, some states and local jurisdictions have found ways to encourage the use of photos and social media without disrupting a polling place or infringing on a voter’s secret ballot. For example: 

  • Taking a photo with an “I Voted” sticker. Georgia has a “Post the Peach” campaign to encourage people to take a photo wearing the “I’m a Georgia Voter” sticker with a peach in the background.
  • Taking a selfie next to a “Vote Here” sign. This has been encouraged by officials in Iowa as a good alternative to posting ballot selfies.
  • Posing next to an “I Voted” sign. The Tennessee Secretary of State’s Office encouraged voters to print off a “I Voted – Have You?” sign and post photos on social meeting using #GoVoteTN.  
  • Taking a photo of an un-voted ballot. In 2016 San Bernardino County had a “Ballot Selfie Booth” for voters to take photos with un-voted ballots.
  • Take a photo at a kiosk. Local election officials in Iowa and Illinois, two states that have laws prohibiting selfies, have created photo backdrops.

Additional Resources