Ballot selfie or no ballot selfie? That is the question states have been confronted with in the runup to Election Day on Nov. 8.
Denver District Attorney Mitch Morrissey reaffirmed Thursday that Colorado forbids the practice of snapping a picture of a completed ballot. The reminder comes after federal courts barred similar laws in New Hampshire and Indiana earlier this year.
Posting selfies and other pictures to Facebook, Instagram, Snapchat and other forms of social media have become an intrinsic part of how younger generations communicate. But this 21st century practice clashes with state laws that, in some case, date back more than 100 years.
Opponents of selfie bans say states must catch up to the times. They argue ballot selfies are a form of free speech that promotes participation in the democratic process. But proponents claim these laws are necessary to prevent the corruption of elections.
“We have a law that says well you can’t prove to someone that you voted a particular way so that we protect the integrity of the election system,” Colorado Secretary of State Wayne Williams told 9News.
Meanwhile, states have been creative in how they allow, forbid, or turn a blind eye to ballot selfies.
There is no federal law that forbids voters from posting a picture of a completed ballot online.
About 25 states have banned the practice. The laws arose from a desire to prevent political hacks from requiring voters prove they voted for a candidate in order to bribe or coerce them. Colorado instituted its version of the law in the 1890s because voters who showed their ballots could receive prizes such as free drinks, according to The Washington Times.
But today, cellphone cameras, combined with Millennials’ inclinations to document their lives online, have led many states to lift or relax these laws. Hawaii passed a law this year that allows voters to share a digital image of one’s own marked ballot. Oregon voters are free to photograph their ballots because all voting there is done by mail. Louisiana permits the practice, even though Secretary of State Tom Schedler has said he isn’t a fan of it. While these and other states recognize (sometimes begrudgingly) ballot selfies are a form of expression, others continue to oppose the practice.
In Illinois, ballot selfies are banned by a law that considers “knowingly” marking your ballot so that another person can see it a penalty. The felony carries a prison sentence of one to three years. In Alaska, state law bans voters from showing their marked ballots, but a spokesman told the Associated Press there is no way to enforce it. In Colorado, ballot selfies are considered a misdemeanor. A 2016 bill failed to repeal the ban.
The American Civil Liberties Union of Colorado responded to the Denver district attorney’s reminder with calls for him to retract the statement because it was a “misguided threat to prosecute voters,” according to The Washington Times.
While a federal appeals court in Boston struck down a similar New Hampshire law earlier this month, the ACLU of New Hampshire told the Christian Science Monitor’s Amanda Hoover all states should make sure their laws conform with the times.
“We need to make sure that the First Amendment is meaningful in the 21st century as new forms of communication are created,” says Gilles Bissonnette, the legal director of the American Civil Liberties Union (ACLU) of New Hampshire, in an interview with The Christian Science Monitor.
“When a state tries to update an old law to deal with new forms of criminal behavior, it needs to do so in a way that’s tailored and respects free speech,” he says.
That will mean creating pinpointed, rather than blanketed, adjustments to current laws, Mr. Bissonnette says – something the court ruled New Hampshire failed to do with its ballot photography ban.
Snapchat, which filed an amicus brief in the spring in opposition to the now overturned New Hampshire law, believes ballot selfies even surpass other forms of speech.
“It is precisely because a ballot selfie proves how a voter has exercised her franchise that it is an unmatched expression of civic engagement,” it said in the brief. “There is, simply put, no substitute for this speech.”
Snapchat added in a statement: “Whether it’s a campaign button or a selfie from the ballot box, Snapchat believes that expressing participation in the democratic process is an important part of free speech and civic engagement that the First Amendment roundly protects.”
This report contains material from the Associated Press.