Ballot-selfies are illegal in New York

It is illegal in New York for anyone to "show his ballot after it is prepared for voting, to any person so as to reveal the contents." That law was passed 126 years ago. Today, it would prevent you from posting a "ballot selfie" on Facebook. Some courts around the country are striking down this law under the First Amendment. A judge in New York City declines to do, and the law remains on the books.

The case is Silberberg v. Board of Elections, issued on November 3. The Facebook generation likes to post photos of themselves with their completed ballots to show the world why they are so enlightened. But new practices are still governed by old laws. Why was this law passed? Judge Castel says the law protects ballot secrecy and protects against bribery:

The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason. As Justice Blackmun [has] noted ... the nation had been plagued with voter bribery prompted by ballots that political parties “often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance.” The problem was not resolved by standardized ballots because “the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box.”

The plaintiffs seek a preliminary injunction, which would allow the court to rule in their favor at an early stage of the case if the plaintiffs can prove a strong likelihood they will win the case and irreparable harm if they do not win the case now. Judge Castel rejects that effort, reasoning as follows:

This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well-intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.

Any deprivation of First Amendment rights has potential to create irreparable harm, so the court focuses on whether plaintiffs can win this case. The judge notes that "The plaintiffs allege that section 17-130(10) violates this constitutional guarantee by restricting New York voters’ rights to communicate by sharing photographs of marked ballots through the internet and social media." This would make sense to most people, for whom political speech is pure First Amendment speech. But the court holds that polling places are generally not "public fora" or pure speech zones, so the government has greater leeway in enforcing the law. Here, the court says, "states have a recognized interest in preserving the integrity of the election process. ... Section 17-130(10) was enacted in order to prevent vote buying, voter intimidation, and to preserve the secrecy of the ballot." The heart of the reasoning follows:

Indeed, the ubiquity and ease of smartphone technology plausibly increases the risk of one form of voter intimidation. Without the statute, employers, unions, and religious groups could encourage their members to upload images of their marked ballots to a single location to prove their commitment to the designated candidate. Those who declined to post a selfie could be swiftly outed and subjected to retaliation. This not-so-subtle form of voter intimidation is squarely within the zone of the statute’s intended reach.

Not only that, but ruling in plaintiffs' favor would cause serious logistical problems on Election Day. Poll workers have already been trained to enforce the prohibition against ballot-selfies, and a last-minute ruling would throw a monkey-wrench into the process. "Absent the best of reasons, not remotely presented here, elections officers should not have to disseminate a new, difficult-to-implement policy to 30,000 poll workers in the week before a presidential election. Requiring Defendants to make substantial changes to election policies at the eleventh hour is simply unreasonable, particularly given the fact that the plaintiffs could have brought their challenge several months or years ago."