Ballot Selfies are Free Speech, Except in Colorado

Posted by: Colin McCallin       26-Oct-2016       (0) Comments        Back to Main Blog

Ballot selfies are when people take pictures of themselves at the voting booth or with their completed ballot and then share it with others, typically on social media. It seems like a simple thing and selfies are ubiquitous, but not all states consider them benign. In fact, in Colorado, ballot selfies are illegal and this has prompted lawsuits against the ban.

The Law

The law against sharing ballot information is actually over a hundred years old and stems from an effort to prevent vote buying, in other words, showing someone your ballot who promised a reward if you voted a certain way. The law states that it is a crime to show a completed ballot in any way to anyone else, CRS 1-13-712.

 

(1)          Except as provided in section 1-7-108, no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting.

(2)          No person shall endeavor to induce any voter to show how he marked his ballot.

(3)          No election official, watcher, or person shall reveal to any other person the name of any candidate for whom a voter has voted or communicate to another his opinion, belief, or impression as to how or for whom a voter has voted.

(4)          Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

 

The story behind the law is actually pretty funny. A saloon owner in Wray, Colorado, wanted to sway the vote to move the county seat to Wray from Yuma. Knowing that the good citizens of Wray couldn’t resist pigs’ feet and whiskey, he promised that anyone who voted for Wray as the new county seat could show their ballot to him and he would reward them with free pigs’ feet and whiskey. As you probably guessed, Wray became the new county seat by a landslide.

The Lawsuits

One lawsuit is filed by the Libertarian party and additional Denver voters who already took selfies and shared them. The Libertarians got involved when a member wanted to video her libertarian votes to discuss her reasons for them and then learned she could not. Another lawsuit has been filed by Republican State Senator Owen Hill along with a DU student who is a Democrat. The issue affects people from varied political views. Both lawsuits are asking that Colorado makes the ban unconstitutional.

The ACLU has also been critical of this rule, stating that other state courts have found the selfies to be legal and a matter of free speech.  Both Indiana and New Hampshire courts have defended this right and 7 other states have legislation protecting the right to ballot selfies.

What’s the Big Deal?

Proponents of the selfies argue it is a matter of first amendment rights and that sharing your choices does not create issues. In other words, it’s an old law and the original concerns no longer exist. Furthermore, supporters argue the ban could intimidate voters who genuinely need help with their ballots. Opponents, including Denver DA Mitchell Morrissey, argue that there is still a risk of voter fraud and the ban makes sense. They also point out that getting help with a ballot is a separate matter and not illegal and that people don’t necessarily seek this kind of help on social media.

What Happens if I am Busted?

The penalty for a selfie ballot is a misdemeanor, which means that it is criminal in nature and punishable by jail and/or a fine.  However, no one is monitoring voting locations for the activity. Citations are issued based on confirmed reports, and it is unlikely the person will be arrested.  However, the confirmed reports may stem from something you post on Facebook that is reported to or noticed by the police.

Currently the law bans ballot selfies so don’t do it. But the ever-changing landscape of social media and everyday life indicates this law may change sooner rather than later. Whatever you choose to do, go vote!    


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