Michigan Lawsuit Challenges State Ballot Selfie Ban
December 2, 2016
By: Sara Krauss
In the November 2012 election, Michigan voter Joel Crookston posted a photo of part of his completed ballot on Facebook, demonstrating his write in-vote for a friend for the position of Michigan State University trustee. On September 9, 2016, Pillar of Law filed a lawsuit on his behalf, arguing that the state laws requiring he forfeit his vote, and potentially receive a fine or jail time for the misdemeanor, is unconstitutional.
Michigan election laws and regulations prohibit voters in the state from taking “ballot selfies,” or a picture of their ballot and posting it on social media. According to the state laws, if a voter in Michigan shows his or her completed ballot to anyone other than a person legally assisting with the completion of the ballot or an accompanying child, the ballot will be “marked ‘rejected for exposure,’” and the incident will be noted in the poll list so the voter will be prohibited from voting in that election. Anyone who has exposed his or her ballot to another person may be found guilty of a misdemeanor. Additionally, Michigan’s State Bureau of Elections published election guidelines and prohibited behavior; in the document, the Bureau explicitly prohibits voters from using cell phones in the voting station, and cell phone cameras in the polling place generally.
In Crookston v. Johnson, Pillar of Law argues that ballot selfies promote civic engagement, and prohibiting the photos is unconstitutional censorship and a violation of voters’ right to free speech. First, Pillar of Law argues that ballot selfies encourage others to vote, particularly younger voters who typically have low turnout rates. Second, Pillar of Law argues that ballot selfies allow voters to “document the integrity” of the polling station and their ballots, and also allow voters to document their truthful vote in case it is contested after the election. Third, Pillar of Law asserts that “electoral advocacy is a key purpose of the First Amendment,” and that, but for the Michigan laws prohibiting ballot selfies, Crookston would continue to post ballot selfies in future elections as an expression of his free speech. Another argument for removing the ballot selfie ban is that such bans may suppress freedom of speech and expression and deter potential voters. Prohibiting ballot selfies may demotivate young registered voters.
However, states have a legitimate interest in protecting ballot secrecy and voter privacy. States banning ballot selfies often state the ban is in order to prevent vote buying and voter coercion. Ballot selfies may also be utilized as an intimidation tool. By posting a ballot selfie on social media, a voter may unfairly use social pressure and coercion to sway other voters who interact with them on social media. Allowing ballot selfies and photos within a polling place and voting station may also intimidate other voters present at the polling place, who may want their presence to remain private. Finally, allowing ballot selfies may create a record of a voter’s partisan selections, which may increase partisanship, division, and competition between political parties.
The argument in favor of allowing voters to take ballot selfies is also gaining traction elsewhere. In September 2016, the First Circuit Court of Appeals struck down a New Hampshire law, challenged by the American Civil Liberties Union, that prohibited voters from taking ballot selfies. The Court’s decision held that the New Hampshire law was overbroad and struck down the law by relying upon voters’ free speech rights, holding that ballot selfies constitute core political speech. The First Circuit Court noted that “Ballot selfies have taken on a special communicative value. . . . We repeat the old adage: ‘a picture is worth a thousand words.’”