Ballot selfie

A ballot in the U.S. 2016 Democratic Party presidential primary in California, marked for Bernie Sanders

A ballot selfie is a type of selfie or photograph that is intended to depict the photographer's completed ballot in an election, as a way of showing how the photographer cast his or her vote. Despite their increasing use in democratic countries during the 2010s, they have been found to violate laws enacted in the late 19th and early 20th centuries to curtail vote buying, particularly in the United States. No voter has been prosecuted for taking a ballot selfie, however, and one U.S. federal appeals court has found that such laws are a violation of the U.S. Constitution's First Amendment guarantees of freedom of speech.^[1]

As Internet-connected mobile devices that include digital cameras have become more widespread, as has social media, there has been a marked increase in the number of digital self-portraits. Voters sometimes take a selfie that includes their ballot to encourage others to vote and to demonstrate their civic involvement. The selfie is often taken in or near a voting booth and is often marked. Sometimes mail-in (absentee) ballots are posted. Others do not take pictures of themselves in the voting booth, but photograph their ballots or the voting machines, either before or after filling them out.

Issues

Several concerns have arisen over ballot selfies, including compromising ballot secrecy, voter fraud, and voter intimidation. These have led to laws being passed prohibiting or restricting ballot selfies in some places.

Enforcement however is quite low in most places, even where strict laws exist, due to the high number of people involved in the act, the resources needed to conduct strict enforcement, and the low negative effect of the action.

Typically, law enforcement does not scour social media for violations that occur en masse. Authorities only take violations seriously if they are associated with voter fraud or intimidation or a vote-buying scheme.^[2]

Legality

Laws regarding ballot selfies vary by country and jurisdiction, often with laws varying by jurisdiction even within a country.

Brazil

Brazil's election laws ensure the secrecy of the vote; therefore, taking any photos of the voting machine (or, for that matter, using any electronic device while voting) is a crime subject to prison and a fine of up to R$15 thousand.^[3]

Canada

Elections Canada has encouraged voters to take selfies outside polling stations^[4] but cautioned against photos of marked ballots,^[5] as the Canada Elections Act makes it illegal to "show [a] ballot, when marked".^[6]

Germany

In federal elections for the Bundestag, taking a ballot selfie in the voting booth was prohibited in 2017 to preserve ballot secrecy and make vote buying and voter intimidation more difficult. If the voting commission notices a voter taking a ballot selfie, the ballot paper is not accepted. The voter will then be given a new ballot paper on request after destroying the old one. ^{[7] [8]}

United States

In the United States, there is no federal law regarding ballot selfies, leaving the matter to the individual states.^[9] The American Civil Liberties Union and others have questioned the constitutionality of prohibiting ballot selfies, citing the First Amendment's free speech guarantee.^[10][11][12]

Some U.S. states prohibit ballot selfies, imposing fines or jail terms for violations.^[10] New Hampshire's ban on ballot selfies was ruled "facially unconstitutional" by the United States Court of Appeals for the First Circuit in September 2016.^[13] This ruling though only affects the status of New Hampshire's law and leaves those in other states unaffected. On April 3, 2017, the Supreme Court refused to hear the case, leaving the First Circuit's decision intact.^[14]

In Tennessee, entertainer Justin Timberlake came under fire for a ballot selfie he took, though the state did not take legal action.^[15]

States that currently allow ballot selfies or don't enforce laws against them are: Connecticut, Hawaii, Idaho, Indiana, Kentucky, Louisiana, Maine, Minnesota, Montana, Nebraska, New Hampshire, North Dakota, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington, Wyoming, and the District of Columbia.^[16]

States that currently prohibit ballot selfies are: Alabama, Alaska, Colorado, Florida, Georgia, Illinois, Kansas, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New Mexico, New York, North Carolina, South Carolina, South Dakota, and Wisconsin. Illinois's laws are the strictest of all. While most states consider the offense a misdemeanor punishable by a fine, in Illinois, taking a ballot selfie is a felony punishable by 1–3 years in prison.^[16]

States where the law is currently unclear are: Arizona, Arkansas, California, Delaware, Iowa, Maryland, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, and West Virginia.^[16]

South Africa

South Africa's Independent Electoral Commission takes a hardline approach toward marked ballot selfies.^[17]

References