Taking a Selfie Can be a Misdemeanor? Judge Upholds New York’s Ban on Ballot Selfies - Fordham Intellectual Property, Media & Entertainment Law Journal
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Taking a Selfie Can be a Misdemeanor? Judge Upholds New York’s Ban on Ballot Selfies

Taking a Selfie Can be a Misdemeanor? Judge Upholds New York’s Ban on Ballot Selfies

Photo Credit: Bruce Charles Flickr via Compfight cc

A ballot selfie, unlike the mainstream conception of a selfie, is centered on the inclusion of a completed ballot and not of a person’s own face.1 Although states have or had ballot selfie bans in place, many have been struck down and ruled unconstitutional as a violation of the First Amendment.2 How did New York recently uphold the ban? Senior District Judge Castel held that the ban survives strict scrutiny because of New York’s compelling interest to prevent vote buying and coercion.3 Further, Judge Castel held the law is narrowly tailored to only ban completed or marked ballots and not selfies of blank ballots to which these interests would not apply.4

The regulation of secret ballots is not a new one.5 The first mandate in New York was established in 1890.6 Before this regulation, vote buying and coercing was common.7 After regulation was enacted, these concerns diminished significantly.8 The law has remained substantially the same since its enactment.9

Judge Castel’s holding is directly in conflict with decisions in other states that ruled against this type of ban. Specifically, Gardner, a First Circuit opinion from 2016, states that the New Hampshire ballot selfie ban is unconstitutional.10 The court held that the ban doesn’t survive strict scrutiny because it wasn’t narrowly tailored to prevent vote buying and coercion.11  The opinion notes that this technology has been around for about 15 years and there is not a single complaint of voter coercion or any identified market for vote buying.12 Gardner is distinguishable because in New York, vote buying schemes have been identified over the last five years,13 making it a compelling interest for New York to pursue. Additionally, defendants present an argument that allowing ballot selfies will increase wait times at the polls, which is already a significant factor of why people do not vote.14 An expert, Dr. Stephen Graves, ran models that simulated voter wait times if ballot selfies were allowed.15 The Court concluded that even considering these models were not exact to real world conditions of New York voting, it was able to show that ballot selfies would “materially increase” wait times and suppress voter turnout.16

The biggest argument against the ban is that by restricting voter’s 1st Amendment right to free speech, the State is disallowing voters to use social media to engage with peers and encourage voting.17 Get-out-and-vote style campaigns have swept America during the recent elections. Voters view posting their ballot selfies on social media as a way to “share their voting enthusiasm, and implore their friends to follow suit.”18 This argument is centered around millennials and the integral part that social media plays in their lives.19 However, Judge Castel held that the ban doesn’t prevent voter’s from sharing they voted on social media as suggested, it merely prevents them from sharing a completed ballot, a restriction he believes is minimal.20

In early 2017, the Supreme Court denied review of the Gardner case involving New Hampshire’s ballot selfie ban.21 If this case is appealed and affirmed by the Second Circuit it will be in conflict with the courts holding in Gardner and could change the Supreme Court’s decision to review the ballot selfie issue.22 As for now, voters will have to find other ways to share their voting excitement on social media.

  1. See Mark Joseph Stern, Bring on the Ballot Selfies!, Slate (Sept. 23, 2016), http://www.slate.com/articles/technology/future_tense/2016/09/voting_booth_ballot_selfie_bans_violate_the_first_amendment.html [https://perma.cc/J6Y6-5N4W].

  2. See David Kravets, New York voters have no 1st Amendment right to snap ballot-booth selfies, ArsTechnica (Sept. 30, 2017), https://arstechnica.com/tech-policy/2017/09/new-york-voters-have-no-1st-amendment-right-to-snap-ballot-booth-selfies/ [https://perma.cc/8YTF-MQ6H]. See also Secrecy of the Ballot and Ballot Selfies, National Conference of State Legislatures (Feb. 23, 2017), http://www.ncsl.org/research/elections-and-campaigns/secrecy-of-the-ballot-and-ballot-selfies.aspx [https://perma.cc/T268-ETMZ].

  3. See Silberberg v. Bd. of Elections of New York, No. 16-8336 (S.D.N.Y. Sep. 28, 2017).

  4. Id.

  5. Id.

  6. N.Y. Election Law § 17-130(10).

  7. Id.

  8. Id.

  9. Id.

  10. See Josh Gerstein, Appeals court: Ballot selfie ban unconstitutional, Politico (Sept. 28, 2016), https://www.politico.com/blogs/under-the-radar/2017/04/new-hampshire-ballot-selfies-no-supreme-court-236823 [https://perma.cc/2ZLQ-H682].

  11. Id.

  12. Id.

  13. See Silberberg, supra note 3.

  14. Id.

  15. Id.

  16. Id.

  17. See Stern, supra note 1.

  18. Id.

  19. Id.

  20. See Silberberg, supra note 3.

  21. See Gerstein, supra note 10.

  22. See Rick Hasen, Federal District Court Upholds NY Ballot Selfie Law Against First Amendment Challenge, Applying Strict Scrutiny, Election Law Blog (Sept. 28, 2017), https://electionlawblog.org/?p=95066 [https://perma.cc/SJR4-C3Z2].

Kimberly Jones

Kimberly Jones is a second-year J.D. candidate at Fordham University School of Law, and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.