It’s election time again. And that means nothing but Instagram photos of people’s “I Voted” stickers, long lines at polling booths, and the occasional celebrity taking an ill-advised voting booth selfie.
Which begs the question: Is it illegal to take a voting booth selfie?
Short answer: Depending on where you live, possibly—although probably not for much longer. And, assuming you’re not taking the photo for some dark and evil purpose, your chances of being prosecuted are low. (But that’s not an excuse to do it!)
The reason for this has nothing to do with being a Luddite and everything to do with the integrity of the voting process in three main ways: vote buying, undue influence, and voter intimidation.
VOTE BUYING/VOTER INFLUENCE
In 2012, a citizen of North Carolina brought his smartphone to the polling booth. He had made his notes of which candidates he wanted to vote for on his phone, took out his phone to read the list, and was immediately descended upon by election officials, who ultimately made him leave the room, make notes on a piece of paper, and then return to cast his vote. As local station WRAL explained, there were two problems: The first was that, by having a cell phone, he could be texting someone and receiving information about who to vote for.
The second point was that if some criminal spent large sums of money to buy votes, the only way they could tell if a voter followed his or her instructions would be with a picture (widespread vote buying in the late 19th century is the reason we now have secret ballots). WRAL even mentioned stories of criminal syndicates giving people cell phones to document their votes in the polling booth.
Of course, these points are weakened slightly thanks to the proliferation of absentee voting. In 2000, a satirical website, Vote Auction, appeared. The premise was that you would auction off your vote and then fill in an absentee ballot. That absentee ballot would be sent off, verified, and mailed to the correct polling place.
The website, of course, was ridiculously illegal and was quickly shut down (the webmaster claimed it was a protest against the role of money in government), but it became another example of the increasing worries of how the internet would affect voting.
A closely related sibling to vote buying is voter influence—and this is where it gets dicey for celebrities. If it’s obvious a major star is voting for Candidate X, their fans may want to emulate that celebrity. In countries with strong anti-influence-election-laws, such as New Zealand, posting a completed ballot selfie online on Election Day can result in heavy fines, and the Electoral Commission says, “It also potentially exposes the voter’s friends to the risk of breaching the rules if they share, re-share, or repost the voter’s ‘selfie’ on election day.”
VOTER INTIMIDATION
There’s another worry about selfies at polling places: other people. According to The Huffington Post, in 1994 there were concerns that videos of polls in the South were “thinly veiled attempts to intimidate black voters at the polls.” And in the 1960s, there were reports that Texas Rangers were “in Mexican-American districts and used cameras, apparently taking pictures of the voters.” While these cases were never pursued, they helped create a wave of photographic restrictions not just in the polling booth, but in the area around them as well. Which makes sense, as the person behind you in line may not want anyone to know that they’re voting.
WILL I GET PROSECUTED?
Tough to tell. Several states don’t even really have enforcement mechanisms for the law (for a list of state laws, see here). And most states don’t care if you’re just posting it for your own benefit, as legitimate political speech was never supposed to be the target, although it’s never a good idea to gamble on the kindness of bureaucrats.
But they might soon be legal. The ACLU has been fighting several high-profile cases regarding these bans, with varying levels of success. So whether you take a selfie or not, you’re participating in the long struggle between freedom of speech and a free election.
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November 7, 2016 – 3:00pm