Do voters have a First Amendment right to take ballot selfies? In the 2016 presidential election, it was illegal in eighteen states for voters to take photos with their completed ballots.[1] Some of these laws are over 100 years old.[2] In this post, I consider the state of the law regarding prohibitions on ballot selfies and how the Supreme Court might evaluate pending challenges to them.

In the run-up to the 2016 elections, voters challenged many laws proscribing ballot selfies, yet courts diverged in their responses. The First Circuit, for example, struck down on First Amendment grounds a New Hampshire law that banned voters from sharing photos of their marked ballots on social media or elsewhere.[3] A month later, the Sixth Circuit stayed[4] a preliminary injunction against enforcement of a Michigan law that prevented voters from taking photos of their marked ballots at state polling locations and expressed skepticism toward the plaintiff’s odds of prevailing on the merits.[5] And lower courts in California, Colorado, and New York split on whether to issue preliminary injunctions against ballot selfies ahead of the election.[6]

The law in this area is unsettled, and the Supreme Court has yet to weigh in. The Court earlier this month declined to grant certiorari on an appeal in Gardner v. Rideout, the First Circuit’s decision from last fall, leaving lower courts to further develop the law.[7]

As challenges to selfie bans are litigated, courts will first consider the appropriate standard of review—a question that divided the district and circuit courts in Rideout—by determining whether the statute is content-neutral or content-based. In other words, the court will determine whether the statute restricts the time, place, or manner of the speech or instead restricts speech based on its underlying content. After determining whether the statute is content-neutral or content-based, courts will then determine whether the statute is appropriately tailored to the governmental interest it promotes.[8]

If the statute is content-neutral, courts will apply intermediate scrutiny, which requires the law to be “narrowly tailored to serve a significant governmental interest” and does not require the state to use the least restrictive or intrusive means of serving the government’s interest [9] If the statute is content-based, it will be held to strict scrutiny, under which the state must prove that the law furthers a compelling government interest and is narrowly tailored to achieve that interest.[10]

This question went unresolved by the First Circuit in Rideout. The First Circuit did not affirm the district court’s finding that the New Hampshire statute was content-based.[11] Instead, the First Circuit sidestepped the content question by holding that the statute wouldn’t even meet the tailoring requirements under the more state-friendly intermediate scrutiny standard.[12] The court reasoned that since the state was not responding to an “actual problem” in need of solving and only asserted “abstract interests,” the statute was not adequately tailored.[13] Namely, the statute “prohibit[ed] innocent political speech by voters unconnected to the State’s interest in avoiding vote buying or voter intimidation.”[14] For example, a voter could post a photo of their marked ballot well after Election Day, and still be held criminally liable. Thus, the court did not need to reach the question of whether strict scrutiny applied. By failing the second part of the First Amendment analysis, the law was doomed.

Perhaps the Supreme Court, by declining to grant certiorari in Rideout, felt it was not the appropriate case for clarifying the law since the New Hampshire statute was so poorly tailored. As Rideout demonstrates, regardless of whether the state’s restriction is content-neutral or content-based, statutes will likely fail at the tailoring stage of the analysis if they are too restrictive on too broad a swath of protected speech. States shouldn’t restrict protect speech using a machete when they can use a scalpel.

But, if the statute in Rideout was not tailored enough, how tailored do state laws have to be to pass muster? What is the limiting principle? If voters have a First Amendment right to share ballot selfies online, does this mean they can hang out in the voting booth for an extra five or ten minutes to get that perfect Instragram shot? Can they turn on Facebook Live and live-stream their voting experience?

The Sixth Circuit may have the answer. In Crookston v. Johnson, the Sixth Circuit considered a challenge to a Michigan statute designed to prevent voters from showing their marked ballot to others at the polls.[15] Additionally, the Michigan Secretary of State banned all video cameras, cell phone cameras, and other recording devices in polling locations.[16] The court found the state’s interests in “preserving the privacy of other voters, avoiding delays and distractions at the polls, preventing vote buying, and preventing voter intimidation” to be serious.[17] On the possibility of vote buying, the court rejected the same arguments that the First Circuit accepted in Rideout, reasoning that the link between the law and advancing an interest in preventing vote buying was “common sense,” and that the state’s concerns were not minimal or speculative.[18] The court also suggested that allowing selfies in the voting booth could create delays at the polls and that the ban served the state’s interest in running elections smoothly.[19]

The Sixth Circuit raises a valid point. Prohibitions limited to polling locations may survive even if the Court finds they are content-based and subject to strict scrutiny, under its decision in Burson v. Freeman. There, the Court upheld under strict scrutiny a state statute that created a “campaign-free” zone within 100 feet of the polling location entrance.[20] The Court found that the state had a compelling interest in protecting the right of its citizens to vote freely for the candidates of their choice and protecting the integrity and reliability of the election process.[21] In its tailoring analysis, the Court found that the prohibition was not a “significant impingement” on voters’ First Amendment rights.[22]

Taking a photo of a marked ballot—which inherently advocates for or against a candidate—seems analogous to the political speech constitutionally prescribed in Burson. But is a selfie ban at polling locations more of an imposition on voters’ First Amendment rights than the “campaign free” zone in Burson? On the one hand, a voter may only cast one ballot, and typically does so at a polling location. The ballot is a powerful symbol of the voter’s political opinions, and the voter’s presence at the polling location may be an important part of their message. Voters might take and share ballot selfies at polling locations to not only support certain candidates or initiatives, but to also make a statement about the very act of voting. Delegitimizing the ballot and the act of voting as forms of political speech by upholding a ban on taking a photo of a marked ballot may be undesirable to the Court. On other hand, voters have alternatives for expressing their political preferences and do not need to take a photo with their ballot at a polling location to express those preferences. Voters may take ballot selfies by casting a ballot through other means not associated with polling locations, such as voting by absentee ballot or mail. And voters’ First Amendment rights to advocate for their preferences by speaking on traditional and social media, organizing into groups with like-minded citizens, or protesting are left uninterrupted by a ban on ballot selfies at polling locations. Therefore, it might not be a “significant impingement” on voters’ rights to close off one vehicle for expression in the narrow geographic area in and around the polling location.

In sum, Burson probably permits states to ban ballot selfies in polling locations. The Court, however, should not take the ballot selfie dispute as an invitation to further limit the First Amendment by extending Burson beyond the polling location, where the state’s interests are significantly more limited.

1. Abby Ohlheiser, Yes, your ballot selfie still might be illegal. Sorry., Wash. Post, (March 20, 2017), https://www.washingtonpost.com/news/the-intersect/wp/2016/10/26/yes-your-ballot-selfie-still-might-be-illegal-sorry/?utm_term=.d78c667ef830 [https://perma.cc/VF22-WBYZ]. ↑

2. Id. ↑

3. Rideout v. Gardner, 838 F.3d 65, 68 (1st Cir. 2016), cert. denied, U.S. (No. 16-828) (2017), http://law.justia.com/cases/federal/appellate-courts/ca1/15-2021/15-2021-2016-09-28.html [https://perma.cc/524B-77Q4]. ↑

4. While the standard of review is different when the court considers a request to stay a preliminary injunction as opposed to ruling on the merits, this judicial activity provides meaningful insight into the state of the law. ↑

5. Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016), http://law.justia.com/cases/federal/appellate-courts/ca6/16-2490/16-2490-2016-10-28.html [https://perma.cc/TR78-EVNB]. ↑

6. Federal district courts in California and New York decided not to issue injunctions against enforcement of selfie bans, in contrast to a decision from the District of Colorado that issued an injunction. See Silberberg v. Kosinski, No. 16-cv-8336-PKC (S.D.N.Y. Nov. 3, 2016) and ACLU of N. Cal. v. Padilla, No. C 16-06287-WHA (N.D. Cal. Nov. 1, 2016), but see Hill v. Williams, No. 16-cv-02627-CMA (D. Colo. Nov. 4, 2016). ↑

7. Petition for Writ of Certiorari, Gardner v. Rideout, U.S. (2017) (No. 16-828). ↑

8. This post assumes that polling locations will continue to be considered public fora under Burson v. Freeman, 504 U.S. 191, 198 (1992), https://www.oyez.org/cases/1991/90-1056 [https://perma.cc/9DAT-9BH4]. ↑

9. See Id. at 198. ↑

10. Id. ↑

11. See Rideout, 838 F.3d at 70. The district court concluded that the statute was content-based because it required state officials to examine the content of the speech to determine whether it included impermissible subject matter. See Id. ↑

12. Id. ↑

13. Id. at 72. ↑

14. Id. at 75. ↑

15. See Crookston, 841 F.3d at 398. ↑

16. Id. ↑

17. Id. at 400. ↑

18. Id. ↑

19. Id. ↑

20. 504 U.S. 191. ↑

21. Id. at 198–99. ↑

22. Id. at 210.